PI Brief Update

Assessing Capacity for Litigation - Dr Mark Burgin

06/03/23. Dr Mark Burgin explains how a disability analyst approaches MCA testing and the 4 steps of understand, retain, weigh and communicate their decision.

All people are capable of some tasks and lack capacity for others. In disability the key question is whether reasonable adjustments will allow the person to regain or develop capacity in a specific area. The expert must test the person in that specific area as well as generally. The expert can then determine what reasonable adjustments (practicable steps) can be made and their likely effects.

A psychiatrist assessment is too limited to make these determinations with the result that there are often differences between different experts on the same person. Impairment of or disturbance in the functioning of the person’s mind or brain includes mental illness and other problems. Psychiatrists have expertise in mental illness but are not expert in other areas of functional restriction. Many people have functional restrictions that are psychological rather than psychiatric.

It is not enough for the solicitors to provide a general description of the case as the expert must compare the person’s understanding with the key issues in the case. This puts a very heavy burden on the instructing solicitor to give a comprehensive explanation of the case. in practice experts are often asked to provide an opinion without this information. This leads to the expert having to guess the nature of the proceedings.

Where the instructions are inadequate

In an ideal world the court would consider whether the details of the proceedings and relevant information about the circumstances of the person is adequate. In practice experts should indicate that the information is inadequate but adequate remediation is rare. The expert will usually need to fulfil their duties to the court without the required information or refuse the case.

The description of the proceedings given to you should include the person’s role in the proceedings, a summary of the issues involved (not simply the type of case), state whether the proceedings are particularly complex and what are the perceived difficulties in the person concerned making decisions about the conduct of the proceedings (from guidance notes)

The interview with the person must contain an exploration of their understanding of the whole case. The expert cannot know in advance which parts of the case are material if the instructions are inadequate. This means asking the person to explain what they believe is happening and to test their knowledge. Solicitors can get upset that the expert is asking about legal issues but the person’s understanding of the law is usually material.

Almost all people have large gaps in their understanding of their legal case which likely reflects public ignorance of the law rather than lack of capacity. The expert then applies the second limb of the capacity test – unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. This is a complex assessment and requires testing the person’s thinking processes.

What is the reason for the gap in understanding?

For a finding of incapacity the person the failure to understand must be due to an impairment rather than for instance not having the issue explained properly. The solicitors will have tried to explain the issues but are usually only experts in communication rather than communication skills. GPs are fairly unique amongst doctors as claiming expertise in communication skills both through formal training and experience.

The specific communication skills required to help address a gap in understanding can be determined using a disability assessment. Simple examples can be that the person appears to have better English than they have or they do not understand long words. In more complex cases the person may dissociate when upset and stop listening or not trust the solicitor.

Functional restrictions in any of motivation, change tolerance, social skills, personal skills and learning may contribute to the person’s difficulties. Although the expert cannot teach the solicitor how to use complex communication skills they can help them attend to the person’s difficulties. This will usually be sufficient to plug the gap in understanding without specialist communication skills assistance.

How should the expert complete the certificate as to capacity to conduct proceedings?

Litigation varies in complexity from the straightforward money claim, through moderately complex litigated case to those of high complexity. Most people are able to understand the ideas of risk and benefit and the concept of money. Their understanding can be tested by asking questions and any gaps dealt with by the solicitor.

Where the case is more complex or of unknown complexity the expert will usually need to say that the person’s capacity is dependent upon the complexity of the case. “Is capable (within the meaning of the Mental Capacity Act 2005) of conducting the proceedings for low complexity without reasonable adjustments and moderate complexity with reasonable adjustments but lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings in high complexity cases even with practicable steps.”

The expert should make a full assessment of the person which includes the person’s own opinion, medical / psychological evidence, a discussion of the functional restrictions and the effects that they have on the person’s capacity, practicable steps (reasonable adjustments) and prognoses and this is best dealt with fully in a separate report rather than trying to include in the certificate. This allows the expert to focus on the specific questions when completing the certificate.

Conclusions

The decision as to whether a person has capacity or not within any court process rests with the court not the expert. It is essential that the expert provides the court with sufficient information so that appropriate steps can be taken. This is particularly important when the instructions are inadequate where I recommend writing the opinion as above. Explaining why the person has capacity for straightforward cases, needs practicable steps for moderate case and cannot gain capacity for complex cases requires more information than will be on the certificate.

The expert will need to ask the person about their understanding of the funding, the chances of not succeeding and the risk of an adverse order as to costs and their understanding of the case and any compromise that might be required. These questions frequently upset solicitors who are not used to an expert following the guidance from the official solicitor.

It is not sufficient in cases where the issues are not black and white to complete the certificate alone. Writing a disability report explaining the person’s functional restrictions and any reasonable adjustments ensures that the expert has complied with their duty to assist the court within their areas of expertise. All experts should note that question 4 (might regain or develop capacity) asks for inclusion of practicable steps (reasonable adjustments).

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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