Q&As

If a person is detained under section 2, 3 or 4 of the Mental Health Act 1983 which require him to be suffering from a ‘mental disorder’, does this mean he no longer has capacity under the Mental Capacity Act 2005 such that he now needs a Litigation Friend to be appointed by the court in relation to ongoing proceedings in which he is a claimant? What impact does the appointment of a Litigation Friend have upon an existing CFA?

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Published on LexisPSL on 13/10/2016

The following PI & Clinical Negligence Q&A provides comprehensive and up to date legal information covering:

  • If a person is detained under section 2, 3 or 4 of the Mental Health Act 1983 which require him to be suffering from a ‘mental disorder’, does this mean he no longer has capacity under the Mental Capacity Act 2005 such that he now needs a Litigation Friend to be appointed by the court in relation to ongoing proceedings in which he is a claimant? What impact does the appointment of a Litigation Friend have upon an existing CFA?

If a person is detained under section 2, 3 or 4 of the Mental Health Act 1983 which require him to be suffering from a ‘mental disorder’, does this mean he no longer has capacity under the Mental Capacity Act 2005 such that he now needs a Litigation Friend to be appointed by the court in relation to ongoing proceedings in which he is a claimant? What impact does the appointment of a Litigation Friend have upon an existing CFA?

The Mental Capacity Act 2005 (MCA 2005) introduced a new test for mental capacity, which should be the starting point to determine a person’s capacity. It codifies the common law and does not expressly overrule it.

MCA 2005 provides that:

  1. it is assumed that a person has capacity until the contrary is proved (reflecting the existing

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