In medico-legal practice, assessing an individual’s capacity to litigate is a critical step when questions arise about their ability to understand and engage in legal proceedings. This is especially relevant in cases involving acquired brain injury, cognitive impairment, mental illness, or developmental disorders.
While the assessment is typically carried out by a clinician—such as a neuropsychologist or psychiatrist—the input of the instructing solicitor is vital to ensure the assessment is legally relevant, appropriately scoped, and useful for the court.
What Is Capacity to Litigate?
Capacity to litigate is a specific legal construct, assessed in accordance with common law principles (notably Masterman-Lister v Brutton & Co [2003]) and guided by the Mental Capacity Act 2005. The test is both decision-specific and time-specific.
To have capacity to litigate, an individual must be able to:
- Understand the nature and purpose of the proceedings
- Weigh up the issues and evidence
- Instruct and communicate with legal representatives
- Make informed decisions about their case and respond to advice
This is not merely a question of general intelligence or memory—it’s about how a person’s cognitive and psychological profile affects their ability to function within a legal process.
The Role of the Clinician
The clinician’s task is to determine whether the person has the functional ability to engage with the litigation process. This usually involves:
- A structured clinical interview
- Cognitive testing
- Review of medical history
- Evaluation of decision-making abilities in context
However, these findings must be interpreted within the legal framework, which is why collaboration with the instructing solicitor is so important.
Why Solicitors Should Be Involved Early
Early solicitor involvement ensures the assessment is correctly framed. A clear letter of instruction should include:
- The nature and stage of proceedings
- The specific decisions the person is expected to make
- Any concerns already raised about cognitive or mental health
- Relevant documents (e.g. prior assessments, medical history)
This context allows the clinician to tailor their evaluation to the specific legal issues at hand, avoiding overly generalised or clinically focused conclusions.
Using the Outcome Effectively
If a client is found to lack capacity to litigate, solicitors must take steps to safeguard their legal rights, typically through the appointment of a litigation friend. In cases of borderline or fluctuating capacity, the legal team may need to revisit the question periodically, especially in longer proceedings.
The assessment also helps the legal team manage risk—ensuring that clients understand their options and that any instructions given are valid and informed.
Supporting Vulnerable Clients in Litigation
The capacity to litigate assessment plays a crucial role in upholding access to justice. It ensures that vulnerable individuals are supported appropriately, and that decisions made in their name are legally and ethically sound.
It also supports legal professionals in meeting their responsibilities under the Solicitors Regulation Authority (SRA) Code of Conduct, particularly around acting in the best interests of clients who may lack capacity.
At Medico-Legal Healthcare we provide expert assessments of capacity to litigate across civil, family, and Court of Protection proceedings. Our neuropsychologists are experienced in working with individuals with cognitive and mental health difficulties and are skilled at producing legally compliant, evidence-based reports. We work closely with solicitors to ensure our assessments are timely, clear, and tailored to the specific needs of each case—supporting both fair legal process and best clinical practice.