Mental Capacity and Litigants in Person

Hi, its Deborah, today one of the issues raised  at the Free Legal Advice session was mental capacity when dealing with legal issues:

In legal proceedings the BURDEN OF PROOF is on the person who is asserting  that a member of their family/friend lacks mental capacity to deal with their own matters.  If you have Mental Health Issues but believe that with some adjustments you can deal with your own legal matters then you will need to defend any allegation that you are incapable of dealing with our own affairs and initially the five key principles in the Mental Capacity Act 2005 will be followed:-

a person must be assumed to have capacity unless it is established that they lack it

a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success

a person is not to be treated as unable to make a decision merely because they make an unwise decision

an act done, or decision made, under MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in their best interests

before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action

It is very important that a Court/Judge be made aware of any concern that there may be about a litigants mental capacity especially if they are attempting to deal with Court proceedings  on their own.    No allowance can be made by a Judge if he is unaware that there is an ongoing problem, once they are aware the Judge/Court must investigate the question of capacity .The Judge will need to be provided with a medical report in respect of the person where there is a question mark in respect of mental capacity.  The medical report will need to be from a Psychologist, Psychiatrist or Psychotherapist.  Medical Reports can cost between £350 to £1500 but can be vital in proving that a person is capable of dealing with their own affairs with some adjustments

There has to be a great deal of care when dealing with someone with mental health issues as this could be a condition which fluctuates  so that there are times when a person can deal with their own legal matters and times when they are less capable of doing so.

In 2014 the Supreme Court considered a claimant who had under-settled her claim because she lacked capacity, something the defendant was unaware of at the time of settlement. In a judgment which emphasised the general policy of protecting vulnerable parties it was held that the claimant did not have capacity to conduct her claim and as such the settlement was invalid. 

This is a huge subject and you can always drop me an e-mail at affordfablelawforyou@gmail.com if you have a question in relation to the above or pop into the Free Legal Advice Service on a Mondays or contact

The above article is for information purposes