Establishing mental capacity to manage litigation in personal injury claims

Mental capacity refers to an individual’s ability to understand information and make decisions. 

We all make decisions every day, sometimes without much thought about the decision we're making. Importantly, mental capacity is about the ability to make a decision – not the ability to make the right decision. 

Here at Irwin Mitchell, when it comes to personal injury claims involving those who have suffered a traumatic brain injury, it's often the case that their mental capacity and ability to make decisions has been impacted as a result of their injury. 

Role of Mental Capacity Act 

The Mental Capacity Act 2005 defines how the ability to make decisions should be assessed and the consequences if an individual is found to be lacking capacity.  

In law, a person is presumed to have decision-making ability unless it's established that they lack capacity, and no-one should be treated as unable to make a decision unless all reasonable steps to help them make that decision have been attempted without success.

In these circumstances, an injured person who lacks the capacity to instruct a solicitor to pursue a personal injury claim is deemed to be a protected party and must be supported by a litigation friend who is able to conduct the proceedings and make decisions on their behalf. A relative or friend can act as a litigation friend, although a solicitor can step in to take on this role as a matter of last resort.

What is the Civil Procedure Rules?

Further, the Civil Procedure Rules also distinguishes between a protected party and protected beneficiary. Whilst protected party refers to an individual who doesn’t have the capacity to conduct the proceedings, a protected beneficiary is an individual who doesn’t have capacity to manage and control any money recovered in the proceedings. It's possible for a claimant to be found to lack capacity to conduct the proceedings but retain capacity to manage and control any money recovered in the proceedings and vice versa. Expert evidence is usually obtained to assist with determining whether the claimant is a protected party and/or a protected beneficiary.

Legal support

Solicitors have a duty to consider an injured person’s capacity. If there appears to be a question around capacity, it should be dealt with as soon as possible and an expert opinion sought. The injured party’s ability to communicate a decision effectively as well as their capacity to understand, retain and weigh information will be assessed by an appropriately-qualified medical practitioner, such as a neuropsychiatrist, neuropsychologist or a psychiatrist who specialises in capacity assessments.

Where a person lacks capacity for the purpose of the Act, a litigation friend is to be appointed.  They must be able to:-

• Provide clear instructions in relation to their claim.
• Be able to comprehend the contents of legal documents and expert reports about their injuries and care needs sufficient to be able to decide whether or not to approve those documents and authorise them to be disclosed to assist the court in dealing with the claim.
• Understand advice which they will be given about the value of their claim, and what elements can be claimed in damages for issues such as housing needs, different types of care package, rehabilitation, aides and equipment.
• Be able to understand risks relating to arguments regarding the value of their claim with their opponents, for example different arguments which may be presented about how to value their care needs.
• Be able to consider and make a decision on the different options for dealing with their claim, such as whether or not to accept an offer in settlement of the claim which in itself will involve a number of separate considerations valuing each aspect of their claim.

Once settlement has been reached in a case involving a protected party, court approval of the settlement must be sought. If the protected party has also been assessed as lacking capacity to manage their finances, then, depending on the settlement value, a Court of Protection Deputy may be required. 

How can we help?

As personal injury practitioners, the key duty is to consider and investigate capacity where there is a suspicion that a claimant may lack capacity. A responsible solicitor acting for a claimant who has a doubt about their capacity must seek a medical opinion. If that medical opinion concludes that the claimant lacks capacity, then they have a duty to appoint a litigation friend. 

There will, of course, be complex cases in which capacity is a borderline issue and in those cases those issues must be explored sensitively with the experts, with the support of, for example, witness evidence from family, carers, support workers, therapists and case managers. 

Finally, in cases involving a protected party, practitioners must consider applying for an anonymity order to anonymise the proceedings. That should be considered at the earliest opportunity, ideally when proceedings are being issued, but at the very least before the first CCMC. It should be borne in mind that practice varies between courts, but it should be considered and raised in all cases where necessary at the earliest opportunity. 

If you want to know more about serious injury legal claims and how Irwin Mitchell can help visit our dedicated serious injury support section.