A serious injury can affect more than a person’s physical health. It can also affect a person’s ability to make decisions. If this affects their legal claim, questions of capacity may arise.
What is capacity?
Capacity is a person’s ability to make a specific decision for themselves. In a personal injury claim, this may include understanding the case, considering legal advice and making informed decisions about how the case should progress.
Capacity issues often arise in cases involving brain injuries, neurological conditions or psychiatric illness, or where the claimant has dementia or learning disabilities.
Having one of these conditions does not mean a person lacks capacity. Equally, someone may cope well day to day but still struggle to make decisions about a legal claim.
The legal position
Capacity is governed by the Mental Capacity Act 2005. One of the key principles of the Act is that every adult is presumed to have capacity unless it is established otherwise.
The Act also makes clear that a person should not be treated as lacking capacity simply because they make a decision that others consider to be unwise, or not the “right decision.”
In a personal injury claim, the relevant question is whether the individual has litigation capacity. In other words, can they understand the issues arising in the proceedings and give appropriate instructions in relation to the claim?
How is capacity assessed?
Where there is uncertainty, capacity can be assessed by an appropriate medical expert.
An expert will consider, under the section 3 of Mental Capacity Act 2005 whether the person can:
- Understand relevant information;
- Retain that information;
- Use and weigh the information when making a decision; and
- Communicate their decision.
The question is not whether the decision is right or wrong. The question is whether the person can make the decision themselves.
Can capacity change?
Yes. Capacity is not always static and can change over time. This is particularly important in brain injury cases, where rehabilitation and recovery can lead to significant improvements over time.
Someone who lacks capacity shortly after an accident may regain it later in the claim. Equally, capacity may fluctuate depending on the individual’s condition. Regular review is therefore essential.
What happens if someone lacks capacity?
A personal injury claim can still proceed where a claimant lacks litigation capacity. In those circumstances, the claimant requires a litigation friend to make decisions and provide instructions on the claimant’s behalf.
A litigation friend is often a family member or close friend, but that is not always possible. Where there is no suitable person available, the Official Solicitor (an independent public office holder) can act as litigation friend.
Settlement and Court approval
The Court provides additional protection for people who lack capacity.
Any settlement reached on behalf of a protected party must be approved by the Court before it becomes binding. This ensures that the settlement is fair and in the claimant’s best interests.
The Court may also consider how any damages award should be managed to ensure the compensation remains available to meet the claimant’s long-term needs.
Getting the right support
It is important to identify capacity issues early. This helps ensure the right safeguards are put in place and that the claim can progress properly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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