Determining whether a person lacks capacity is rather like the game of pinning the tail on the donkey. The Court firstly has to determine whether the person suffers from a mental health condition. They then have to decide whether the case is sufficiently complex that the condition prevents them from being able to do deal with it. There is no scientific formula which can be used to determine with accuracy whether the Court will accept that a person does or does not have capacity. The more familiar you are with the case law, however, the easier you should find it to predict where the Court will pin the tail on donkey should there be a dispute as to capacity.

In pratice I have tended to find that although opponent's solicitors may grumble, they will generally accept that a party lacks capacity where a party's doctor has completed a certificate of capacity indicating that they do not believe that the party has mental capacity for the purposes of the litigation. Local authorities and social landlords are anxious not to be seen to be insensitive to mental health difficulties which tenants may be suffering from. There is also the added expense of having an extra trial within a trial on the issue of capacity.

In practice I have found that once a doctor has certified that the party lacks capacity the Official Solicitor will agree to act and can be appointed without difficulty.

The practical steps to follow are:-

1. Arrange for a doctor to complete a certificate of capacity

2. Send the completed certificate of capacity to the Official Solicitor and invite the Official Solicitor to act.

3. Apply for the Official Solicitor to be Appointed.

I have also found that in practice once the Official Solicitor has been appointed the case moves towards settlement quite quickly. Once a mental health problem has been identified, the local authority or social landlord will generally accept that the problems of rent arrears or anti social behaviour which led to the proceedings have to be seen in a different light. They will generally treat the tenant as requiring assistance rather than eviction. Having said that I have two cases at the moment where this has not yet happened and a disputed outcome is awaited.