to think that an assessment for mental capacity should not rely on cooperation

I’m so sorry,
that sounds horrific. That’s incredibly sad.

No, it does not. Sadly, capacious people do take their own lives. I don’t know about your situation to comment. I am sorry though, it sounds beyond horrific and traumatic. Sometimes ‘systems’ as a whole let people down.

You can if they engage. But equally it's someone's choice whether to engage or not for whatever reason. Sometimes that will be because they can't understand the importance linked to their capacity, but sometimes it will be for a range of other reasons. It wouldn't be right to assume anyone who didn't engage lacked capacity. I can feel your frustration though and wish you and your relative well.

With the greatest of respect, the system hasn't worked in your experience and undoubtedly for others too. No system will work perfectly. But there are also lots of people who it does work for. The idea that everyone has capacity unless proved otherwise is incredibly important for autonomy and people's independence and well-being. It'd be awful if people did not have their wishes heard because they were thought to not have capacity when they do. My relatives with dementia may lack capacity in certain areas but they should absolutely be able to make their own decisions whenever possible.

Then I can only assume that the court didn’t think there was sufficient evidence to rule that the person lacks capacity to litigate. If you’re confident that they do in fact lack capacity and you’re a party to these court proceedings in some way, you may need to try to get some legal advice about how you can go about submitting evidence to demonstrate their lack of capacity to the court and persuade the court that they need a litigation friend.

Capacity has to be assumed unless proven otherwise by a criteria

People can be taken to court even if they don’t have capacity to litigate for themselves. The court will appoint a litigation friend to act on their behalf, who can instruct their solicitor, if they have one, and make decisions about the court proceedings on their behalf. If there’s a suitable family member or close friend, they can be appointed as litigation friend. If not, the court is likely to ask the Official Solicitor to act as litigation friend.

If someone needs the option to prove they DO have capacity, that means an assessment has already been made that they don’t.

So if the person wants that rescinded, it’s this assessment that needs to be challenged or undone. The courts assuming something doesn’t come into it.

A family friend has a similar situation. The DS is diagnosed as bi polar but everyone knows there is much more. He is thought to be schizophrenic as well as more. He can talk to people and appear lucid so no one will help. What the people he is speaking to don't know all he is saying is completely in his head. He will tell you his plans and what he will do in life, sounds reasonable to an outsider but everything he has said is based on his world view which isn't real. No one will help. He will hurt himself or someone else soon

The rules around capacity are tight, and they should be. It's the hallmark of a civilised society that we do not deprive people of their liberty unless there is no other option. I've been on the tough side of this with my mum - she was in the Netherlands, but the rules are very simple. And things had to get really, really, really bad before my Dsis and I could get signoff for an assessment that my mother did not want. Yes, she would have been sectioned and placed in a care home against her will.

She died from a fall downstairs in her home four days before the assessment was due, going down to the kitchen for more alcohol. In many ways that was the best possible outcome for her. I don't feel that looser rules would have been better and might have saved her life.

I get it can be frustrating but in no society should a court be assuming anything. Courts should act on facts and evidence. If it’s a fact that an assessment can’t be carried out because of lack of cooperation, then that fact should be taken into account.

Also, Harold Shipman. Do you really want to live in a world where a single GP can make a simple statement and a court assumes you lack mental capacity? Surely you wouldn’t agree to that?

This.
If a case goes to court, the capacity issue isn’t solely based on the GP assessment. Yes, a health professional needs to compete their assessment.
But also, a social worker needs to complete their witness statement along with submitting their mental capacity assessment, Best Interest decision and support plan.
The judge will consider all of these documents so any decision should not be made solely on the GP assessment.

As far as co operation aspect goes, this forms part of the assessment but the health professional needs to put some context into this.

In the same way that everyone is innocent until proven guilty everyone has capacity until shown otherwise.

Exactly this.

I get it can be frustrating but in no society should a court be assuming anything. Courts should act on facts and evidence. If it’s a fact that an assessment can’t be carried out because of lack of cooperation, then that fact should be taken into account.

Also, Harold Shipman. Do you really want to live in a world where a single GP can make a simple statement and a court assumes you lack mental capacity? Surely you wouldn’t agree to that?