The question of capacity in brain injury claims

April 8, 2020
Ipek Tugcu - Associate solicitor in the Adult Brain Injury team

Posted by: Ipek Tugcu


For over 10 years, I have represented those injured due to personal injury or medical negligence.  One of the aims of bringing a claim is to obtain compensation for the injured person, to put them back in the position they would have been in, as much as possible, had the incident not happened.

A personal injury claim is where someone has been harmed due to another person’s fault.  With brain injury cases, we commonly see claims brought where someone was injured through an assault or an accident, such as a car collision or accident at work.

A medical negligence claim is where a patient has been injured because of unacceptable care, such as a delay in diagnosis or incorrect treatment.

These cases are often complex and there’s a lot to consider.  One of the issues that needs to be considered early on is whether the claimant has capacity.  If they don’t, this will affect the way the claim is run and how compensation is managed, so it’s important to get it right.  Below, I run through some key points to establish in capacity assessment.

What Is meant by capacity?

Capacity relates to a person’s ability to make a decision.  It means that the person must be capable of understanding the consequences of decisions they make about the claim, even if the decisions are bad ones.

How does brain injury affect capacity?

Unfortunately, one of the common consequences of a brain injury is cognitive impairment.  Cognition refers to a person’s ability to learn, understand, consider, communicate and decide.  These are all necessary when someone makes decisions for themselves, which is why it’s important to consider whether capacity has been affected for someone who has suffered a brain injury.

What does the Law say about capacity?

The Mental Capacity Act 2005 is an Act of Parliament which applies to people aged 16 and over in England and Wales.  It outlines the framework of the law for people who are unable to make decisions for themselves.

In brief, the law says that:

  • A person is assumed to have capacity, unless this is proven otherwise;
  • Making a bad decision does not mean someone lacks capacity;
  • People should be given every help and opportunity to make decisions for themselves, if they can

In terms of assessing whether someone lacks capacity, this isn’t straightforward to do.  The Mental Capacity Act says that someone will lack capacity if at the time they are being assessed they are unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain.  This impairment does not have to be permanent.

So how do you know if someone is unable to make a decision for themselves?  Again, it isn’t always obvious.  Lots of people who are able to have conversations, may actually lack capacity.  The Mental Capacity Act says that a person is unable to make a decision for themselves if they cannot do ANY one of the following:

  1. understand information that is relevant to their decision,
  2. retain that information,
  3. use or weigh that information as part of their process in making their decision, or
  4. communicate their decision (whether this is by talking, using sign language or any other means)

How does capacity impact on a legal claim

Arranging an Assessment

There are different forms of capacity, for example someone may have capacity to do certain things but not others.  When bringing a legal claim, it’s important to check whether the claimant has capacity to litigate (which means the ability to give instructions to a solicitor to pursue their case) and also the ability to manage their financial affairs.

If there is any doubt, capacity should be assessed.  Your solicitor should arrange this.

A mental capacity assessment is often required when considering whether a brain injured claimant is able to act for themselves or whether they need to be represented by someone else in order to bring their claim.

Capacity assessments do not have to be undertaken by any one particular person, but when considered for legal claims purposes, they are usually undertaken by medical professionals.  This will mean the medical professional will need to meet with the claimant to communicate with them and then complete a form if they feel the claimant lacks capacity.

Who will give instructions?

Capacity affects who will give instructions to a solicitor for the purposes of a legal claim:

  • When the claimant is an adult (aged 18 and over) and has sufficient capacity to litigate, they will act for themselves.  This means they will provide their solicitor with their instructions and make decisions in their legal case.
  • When the claimant is an adult (aged 18 and over) and lacks capacity to litigate, a litigation friend will be appointed on their behalf.  This is someone, usually a close family member or friend, who has no conflict of interest in acting for the claimant and agrees to act in their best interest when making decisions for them.  Solicitors will take their instructions from the litigation friend.

Of course, just because one person is appointed to give instructions, it does not mean that others aren’t involved.  At Bolt Burdon Kemp, we understand that serious injury of a loved one affects the whole family, and there may well be collective decision making that takes place behind the scenes.  We understand the importance of keeping our clients updated as to developments so that decisions can be made in a timely and informed way.  If we are given appropriate authority to liaise with more than one person in someone’s family, then we will do so.

Managing compensation

If a claimant lacks capacity, any settlement in a legal claim cannot be finalised until it is approved by the court.  This is to ensure that the claimant is protected and receives a reasonable and fair settlement.

If the claimant is assessed as lacking capacity to manage their finances, they will need help doing this.  The Court of Protection will become involved, and will appoint a Deputy to manage the claimant’s compensation, to ensure that money is spent reasonably and in the claimant’s best interest.  The Deputy can be a professional or a family member/friend.

At Bolt Burdon Kemp, we ensure that the claimant and their family are involved in deciding who may be appointed as a Deputy, as we appreciate that this requires a strong bond of trust with them.

Time Limits

If the claimant lacks capacity, this will affect the legal time limits they have to bring a claim.  To read more about legal time limits, please click here.

Ipek Tugcu is an associate solicitor at Bolt Burdon Kemp specialising in Adult Brain Injury claims.  If you feel you may have a claim or are enquiring on behalf of a loved one, contact Ipek free of charge and in confidence on 020 7288 4849 or at ipektugcu@boltburdonkemp.co.uk.  Alternatively, complete this form and one of the solicitors in the Adult Brain Injury team will contact you.  Find out more about the Adult Brain Injury team.

Posted by: Ipek Tugcu

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