Civil Justice Council working group consult on procedure for determining mental capacity in civil proceedings

A Civil Justice Council (CJC) working group has launched a consultation on the procedure for determining mental capacity in civil proceedings.

Creation of the working group was approved at the CJC's July 2022 meeting, follownig a request to the council by a legal practitioner.

The consultation can be viewed here. It runs until 17 March 2024.

The working group’ co-chairs are Diane Astin, housing member of the CJC, and Daniel Clarke, a barrister at Doughty Street Chambers. Other members include barristers Alex Ruck-Keene KC and Sophy Miles, and HHJ Karen Walden-Smith, the Circuit Judge member of the CJC.

The working group has been tasked with considering how the civil courts approach mental capacity. It will have regard to the procedure and common practice in use for determining whether a party lacks capacity to conduct proceedings (i.e. is a protected party within the meaning of Part 21 CPR).

The working group will seek to make recommendations to improve rules, practice directions, or other matters relating in this regard. It will consider the following areas in particular:

1. How the issue as to a party’s mental capacity is identified and brought before the court.
2. The procedure for investigating the issue.
3. The procedure for determining the issue.
4. The position of the substantive litigation pending determination of the issue.
5. The particular issues that arise in relation to these issues as regards (a) litigants in person and (b) parties who do not engage with the process of assessment of capacity

The  working group is also expected to consider wider aspects of the procedure and experience of protected parties (i.e. after the determination of protected party status) which appear of relevance during the course of its work.