December 4, 2025 from Canadian Lawyer Magazine
When it comes to medical malpractice, psychiatric cases stand apart—not only for their complexity but for the unique vulnerability of the plaintiffs involved. For self-represented individuals, the legal system can be a minefield. If their capacity is not properly assessed, they risk having their claims dismissed before they are fully heard.
Why Capacity Is a Legal Priority
Capacity isn’t just a medical issue—it’s a legal safeguard. In litigation, capacity refers to a person’s ability to understand the nature of the proceedings and make informed decisions about their case. When someone lacks that capacity, they’re entitled to have a litigation guardian or legal representative to act on their behalf.
This safeguard is especially critical in psychiatric malpractice cases, where the plaintiffs may have a history of cognitive impairment, psychotic disorders, or other mental health conditions that affect judgment and communication.
Two Different Outcomes: Tipu and Whitehead
Two recent Ontario decisions illustrate how the legal system can either protect or overlook these vulnerable plaintiffs.
In Tipu v. Munchi et al., the plaintiff raised concerns about his capacity to represent himself after filing a malpractice suit related to psychiatric care. The court paused the case and ordered a capacity assessment. Justice Williams found that the plaintiff required a litigation guardian and appointed the Public Guardian and Trustee to protect his interests. As a result, the case could move forward with proper representation.
The message was clear: capacity must be determined before moving ahead with motions that could shut down the case.
Contrast that with Whitehead v. Ontario Shores, where the plaintiff—who had previously been deemed incapable by the Consent and Capacity Board—brought a psychiatric malpractice suit without legal counsel. Despite his history of mental health issues, the court granted summary judgment in favour of the defendants without assessing his capacity to litigate.
The judge pointed out that the plaintiff had not provided expert evidence and viewed summary judgment as a proportional response. But this decision ignored the underlying question: was the plaintiff ever capable of understanding what evidence was required or how to obtain it?
The Danger of Skipping Capacity Assessments
Granting summary judgment without addressing capacity can be devastating in cases like these. Psychiatric malpractice suits often involve complex issues of fact, causation, and expert opinion. Without legal guidance, most self-represented plaintiffs cannot navigate these hurdles alone—especially if their decision-making abilities are compromised.
As Justice Williams stated in Tipu, a capacity determination isn’t meant as a punishment. It’s a protection—a necessary step to make sure plaintiffs are not unjustly excluded from pursuing justice.
Moving Forward With Fairness
Medical malpractice claims involving psychiatric care deserve careful handling. Courts must consider whether a self-represented plaintiff can truly advocate for themselves before deciding to end the case. Legal protections like litigation guardians exist for a reason, and failure to use them risks turning a procedural step into a denial of justice.
For legal teams, advocates, and judges, capacity must be more than a side note. It should be the starting point—especially when psychiatric harm is at the heart of the case.
At Malpractice Check, we are dedicated to providing honest, unbiased opinions on medical malpractice concerns. Whether you’re seeking peace of mind or preparing to present your case to a lawyer, our trusted experts are here to help you navigate the complexities of healthcare errors with professionalism, compassion, and integrity. Contact us today to learn more.