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Capacity To Litigate Assessments 

Capacity to litigate assessments determine whether an individual can understand and participate in legal proceedings. OFH Care provides professional capacity to litigate assessments across England and Wales. Our assessors deliver Court-compliant reports that align with the principles of the Mental Capacity Act 2005, enabling solicitors, families, and vulnerable individuals to navigate litigation proceedings with confidence. Trusted by legal professionals, OFH Care offers face-to-face assessments, fast turnaround, and fixed-fee pricing. Suitable for civil, family, and Court of Protection cases.

What is ‘Capacity to Litigate’? 

Capacity to litigate refers to a person’s ability to understand and engage with legal proceedings involving them. Sometimes called capacity to conduct proceedings or litigation capacity, this legal test is assessed under the Mental Capacity Act 2005, which states that capacity must be decision-specific and presumed unless there’s evidence otherwise. Read our capacity to litigate guide for a more detailed description.

A person has the capacity to conduct court proceedings if they can:

  • Understand the nature and purpose of legal proceedings they are involved in
  • Understand how their legal fees are going to be covered
  • Comprehend the role of a solicitor and instruct them appropriately 
  • Evaluate legal advice and weigh up options 
  • Make decisions about the case 
  • Understand the potential consequences of those decisions 

Where there’s doubt due to brain injury, learning disability, dementia, or any other condition affecting the person’s mind or brain, an assessment of the capacity to participate in legal proceedings can be arranged.

Why Might Someone Need a Capacity to Litigate Assessment? 

A capacity to litigate assessment is typically required when: 

  • A solicitor or legal team has concerns about a client’s cognitive abilities 
  • The individual has a medical condition, mental illness, or cognitive impairment that impacts their decision-making ability 
  • The court requires evidence of capacity to participate in legal proceedings 
  • A litigation friend may need to be appointed under CPR Part 21 
  • The case involves safeguarding, serious disputes, or vulnerable individuals 

OFH Care’s litigation capacity assessments and reports are trusted by courts, legal teams, and families across England and Wales. Whether you’re dealing with civil litigation, family proceedings, or a matter involving the Court of Protection, we can help.

Do you need to book a litigation capacity assessment for a client or loved one? We’re here to help.

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Our mental capacity assessments are person-centred, decision-specific, and tailored to the legal context. During a litigation capacity assessment, we explore the person’s ability to:

  • Understand the legal claim or proceedings
  • Identify key parties and their roles (solicitor, judge, opposing side)
  • Discuss legal options and provide instructions
  • Weigh up evidence and outcomes
  • Make informed decisions throughout the litigation process

Our mental capacity assessors use a friendly, structured approach that includes interviews, observation, and cognitive screening techniques. We also review relevant medical or legal information when needed.

After the litigation assessment, we provide a professionally written, court-ready report that includes:
  • A summary of the assessment and context
  • Clear analysis that aligns with the five principles of the Mental Capacity Act 2005
  • Application of the caselaw, Masterman-Lister v Brutton [2002] EWCA Civ 1889
  • Consideration of the Supreme Court ruling in Dunhill v Burgin [2014] UKSC 18
  • A conclusion on whether the person being assessed has the capacity to participate in legal proceedings
  • Clear rationale suitable for legal proceedings
We work closely with solicitors and referrers to ensure reports are delivered promptly and tailored to each case.
You may request a litigation capacity assessment if you are:
  • You are the individual involved in the legal proceedings
  • A solicitor acting for a client with decision-making issues
  • A family member or carer supporting a vulnerable individual
  • A deputy, attorney, or litigation friend involved in the proceedings
  • A health or social care professional involved in legal support or safeguarding
OFH Care supports all referrers with clear advice, practical support, and timely assessment delivery.

Need a capacity to litigate assessment arranged quickly? Our team can help you get started today.

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Case Study:
Supporting Capacity in a Family Court Dispute

Client:

Ms H, 43, with a diagnosis of emotionally unstable personality disorder and PTSD. 

Context:

Ms H was involved in a family court matter regarding custody arrangements. Her solicitor raised concerns about her ability to follow proceedings and provide consistent instructions. 

What We Did:

OFH Care conducted a face-to-face capacity to litigate assessment. We explored Ms H’s understanding of the case, the role of her solicitor, her ability to consider advice, and whether she could weigh up risks and consequences. 

Outcome:

The assessment determined that Ms H lacked the capacity to litigate because of her fluctuating mental state and poor decision-making. Our report supported the solicitor in taking further actions to ensure Ms H was appropriately supported and her best interests were safeguarded throughout the legal process.

FAQs About Capacity to Litigate Assessments

A litigation friend is someone appointed by the court to make decisions in legal proceedings on behalf of a person who lacks the capacity to litigate.

OFH Care offers fixed pricing, with costs depending on the location where the assessment is to be conducted, and the complexity and urgency of the case. Contact us for a bespoke capacity to litigate quote.

No. This is a decision-specific assessment that focuses solely on the individual’s capacity to participate in court proceedings. Someone may have the capacity to make other decisions but still lack the capacity to litigate; therefore, they will require a litigation capacity assessment.
Yes. All assessments conducted by assessors from OFH Care are court-compliant. Our reports meet the requirements of the Mental Capacity Act 2005, the Supreme Court ruling in Dunhill v Burgin [2014] UKSC 18 and Masterman-Lister v Brutton [2002] EWCA Civ 1889, and are suitable for use as an expert witness statement in civil, family, or Court of Protection matters.
Yes. OFH Care offers face-to-face assessments across most of England and Wales and virtual assessments. This approach ensures the highest standards of accuracy, reliability, and legal compliance. In-person capacity to litigate assessments allow our assessors to build rapport and observe communication and behaviour more effectively. This helps them gather a more complete picture of the person’s understanding and abilities. We work flexibly to accommodate the needs of both solicitors and clients, including care homes or the client’s home, where appropriate.
If an individual lacks litigation capacity, the assessor will document this in the mental capacity report, along with the reasons why. While the assessor does not recommend specific steps, such as appointing a litigation friend, the report can support the legal team or the court in making that decision. It is then the responsibility of the solicitor or the court to ensure that the client is legally represented with fairness.

Why Choose OFH Care? 

OFH Care is a trusted provider of mental capacity assessments, including capacity to litigate evaluations. Our approach is: 

  • Legally robust – Reports suitable for Court and solicitor use 
  • Nationwide – Covering most of England and Wales 
  • Ethical and person-centred – Putting dignity, clarity, and compliance first 
  • Professionally delivered – By trained clinicians experienced in brain injury, mental health, and cognitive impairment 
  • Fast and flexible – Appointments are available quickly, with clear communication throughout 

Whether you're a solicitor, carer, or family member, we make the assessment process simple and straightforward.

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