Mental Capacity in Personal Injury Claims

30 Jul 2020

James Braund examines when a client may not be able to directly bring their own claim, due to a lack of mental capacity.

At Trethowans, we regularly deal with clients who have varying degrees of complex brain injuries, ranging from clients who have limited responsiveness on the one hand, to clients who have far more subtle brain injuries which may not be immediately apparent to someone who does not know that person. At such respective extremes the question of whether someone has mental capacity to bring their own claim may be a fairly easy question. However, there is often a grey area in between, which, unless dealt with and properly considered can cause significant problems when bringing a personal injury claim.

When does someone lack mental capacity?

The starting point whenever there are concerns as to whether someone lacks mental capacity is the Mental Capacity Act 2005 (‘the Act’). This makes it clear that a person is assumed to have capacity unless it is proved otherwise and they do not lack capacity to make a decision until / unless all practicable steps have been taken to assist with the decision. It is also the case that just because someone makes a bad decision does not mean they should be treated as lacking capacity.

Section 2 of the Act defines the test for when someone lacks capacity as follows:

“A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

In cases of traumatic brain injury, clients often have significant memory problems. However the Act also sets out that whilst someone must be able to retain and weigh up information in order to make a decision, they only need to be able to retain the information for long enough to make a decision.

As a result, it is clear that it is a fairly high threshold for a person to lack mental capacity. It has been determined that a person may have capacity to deal with one thing but not another. For example, a person may have capacity to deal with a simple day to day task, but perhaps not to undertake say complex financial decision making.

What does a lack of capacity mean for a personal injury claim?

If a person lacks capacity then they cannot bring any claim directly and a litigation friend must be appointed to deal with the claim on behalf of that person. Instructions for the claim must be taken from the litigation friend.

A person who lacks capacity is treated as a protected party by the Courts. As such, any settlement must be approved by the Court to ensure that it is at a reasonable level. Following such approval, the damages may be paid into the Court Funds Office with sums withdrawn for the Claimant’s benefit where necessary. Alternatively it may be that a Deputy is appointed by the Court of Protection to hold and administer the damages.

Where someone lacks capacity due to the accident in question there will often be additional heads of loss which will need to be sought as part of the claim. These losses may often include professional deputy fees, additional care costs and such like.

Why is it important to get the issue of capacity correct?

If a Claimant loses capacity during proceedings then usually an application will need to be made to amend the party name. However, if the issue of capacity has been misjudged from the start there can be a potential risk that a claim brought incorrectly regarding the capacity of the Claimant could be deemed to be invalid and struck out.

It is also very important for the correct person to be giving instructions for the Claimant’s best interests. For example, there could be significant consequences, down the line, if a claim is settled on instructions from a Claimant when it turns out they did not have capacity to give those instructions or, indeed, vice versa.

If a person is misjudged as having capacity when they lack it due to the accident in the claim then this is also likely to result in the claim being significantly under settled, as additional expenses associated with lacking capacity (as mentioned above) will not have been included.

Case study

We have dealt with a case recently where the issue of capacity was raised by the other side on the back of a medical expert’s examination. The expert recorded a number of answers which the client got wrong to a number of questions (for example regarding days of the week), but did not specifically address the issue of capacity in the report.

We had already spoken with the client, face-to-face, at some length and satisfied ourselves that the client appeared to understand what was being said, and the client provided appropriate responses. The client’s GP records had also been obtained and it was clear the GP had previously undertaken an assessment of capacity and considered that the client did have capacity.

In addition, following the issue being raised, we formally raised the question with the medical expert who considered the same and confirmed that whilst the client’s short term memory was poor, she appeared able to retain information long enough to make a decision and there was nothing during the previous examination which suggested that the client lacked capacity to conduct her own legal case.

On that basis, we were able to rebut the issues raised by the other side and the matter settled shortly afterwards.

What should I do if there are potential capacity issues in my claim or a claim of a loved one?

As can be seen above, the issue of mental capacity can potentially be a complex minefield with significant consequences if it is dealt with incorrectly. As a result, it is vital that anyone looking to pursue a claim where such issues may arise approaches a specialist injury lawyer with experience of dealing with capacity issues.

At Trethowans, we have significant experience of dealing with such issues and, where appropriate, obtaining the necessary further evidence to ascertain the formal position. Our personal injury team often works closely with the private client team regarding such issues, for example, applications to the Court of Protection for a Deputy to be appointed or for a Statutory Will to be put in place.

James Braund is a Senior Associate in our Personal Injury and Clinical Negligence team in Poole and Bournemouth. If you would like to discuss a personal injury or clinical negligence where capacity may be an issue, on a free no obligation basis, contact the team at Trethowans on 0800 280 0421 or get in touch here.


James Braund