Procedure for Determining Mental Capacity in Civil Proceedings

At its July 2022 meeting, the CJC approved the creation of a working group to look at a procedure for determining mental capacity in civil proceedings. The working group was created as a result of a request to the Council by a legal practitioner.


The working group has launched a public consultation, which will run for 3 months until 17 March 2024 at 11.59pm.

Read the full consultation paper online.

Responses should be submitted by PDF or word document to

Please use the word document template for your response and name your submission as follows: ‘name/organisation – CJC Capacity Consultation’.

As part of the consultation process, the working group held a seminar on 1 March 2024. A summary note of the seminar has been published.


  1. Co-Chair Diane Astin – Housing member of Civil Justice Council
  2. Co-Chair Daniel Clarke – Barrister, Doughty Street Chambers
  3. Alex Ruck-Keene KC – Barrister with specialist practice
  4. Susan Hardie – Representative of the Official Solicitor
  5. Sophy Miles – Barrister and former solicitor with specialist practice
  6. Catherine Hose – Lead Solicitor with Shelter
  7. DJ Michelle Temple – District Judge
  8. Rebecca Scott – Director of Legal Services and Senior Solicitor with RCJ Advice
  9. HHJ Karen Walden-Smith – Circuit Judge member of Civil Justice Council

The Working Group will seek to engage with relevant groups. If you wish to get in touch, please email

Terms of reference

The Working Group will consider 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).

It will seek to make recommendations to improve rules, practice directions, or other matters relating in this regard. The Working Group 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:
    1. Litigants in person
    2. Parties who do not engage with the process of assessment of capacity

The Working Group may also find it necessary 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.