This is a sensitive issue that affects a large number of brain injury survivors who wish to make personal injury compensation claims following an accident.

Suffering a brain injury can result in the individual’s mental capacity being impaired. For example, they may subsequently experience difficulties in processing and retaining information, making decisions or communicating their thoughts.

The process of bringing a claim for compensation following a brain injury is complex. Many decisions will need to be made throughout the lifetime of a claim, which will involve a large number of experts, witnesses and documents. Therefore, the mental capacity of the brain injured individual to make these decisions is an extremely common issue within these types of claims.

The definition of ‘mental capacity’

The term ‘mental capacity’ in legal terms is defined within the Mental Capacity Act 2005 (the ‘MCA 2005’) as:

“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.”

When considering this definition, it does not matter whether the impairment or disturbance is permanent or temporary. What does matter is that the impairment or disturbance must cause the inability to make a decision. It is also worth mentioning that a person may have capacity in relation to some matters but not others.

The MCA 2005 goes on to provide further clarification on a person’s ability to make decisions:

“A person will be regarded as ‘unable to make a decision’ for himself, if he is unable:

  • to understand the information relevant to the decision,

  • to retain that information,

  • to use or weigh that information as part of the process of making the decision, or

  • to communicate his decision (whether by talking, using sign language or any other means).”

Assessing an individual’s ability to make decisions in relation to their claim using the above criteria is a delicate issue that needs to be approached very cautiously. There is always a balance to be struck. On the one hand individuals who lack mental capacity need to be protected from making poor decisions, which may lead to them under-settling their claims. On the other hand, there is the presumption that people do have capacity and that they should only be deprived of the right to make decisions in relation to their claims after very careful consideration.

It will always be the legal representative’s duty to do what is in the best interests of the brain injured client. Unfortunately, however, lawyers don’t always get this right. The issue of mental capacity was overlooked by the brain injured client’s solicitors in the recent case of Dunhill v Burgin[2014]. In this case, the individual brining the claim (i.e. the Claimant) had suffered a severe head injury in a road traffic accident in 1999. Her claim was grossly under-settled for the sum of £12,500.00, when in fact is was likely to have been worth over £1million.

Fortunately, the Claimant in Dunhill then instructed new solicitors who considered that it was likely that she lacked mental capacity. They subsequently sought a declaration that the original settlement be set aside because she had received poor legal advice. They argued that, although she may have the capacity to understand her claim whilst it was being treated as a simple motor accident case, she did not have the capacity to understand a complex brain injury case, which is what her claim should have been treated as.

In this case, the court held that in considering whether a Claimant has the mental capacity to conduct proceedings, it is not by reference to the claim as formulated by lawyers but rather by reference to the claim that the Claimant in fact has.

How the interests of brain injured clients who lack mental capacity are protected

An individual who lacks mental capacity is otherwise known as a ‘protected party’. The law provides numerous safeguards for protected parties.

  • Litigation friends

A protected party must appoint what is known as a ‘litigation friend’. A litigation friend will make decisions and provide legal representatives with instructions on the Claimant’s behalf in relation to their claim.

Any person can act as a litigation friend on behalf of a protected party, providing they can fairly and competently conduct proceedings on behalf of the protected party and also provided that they have no interests that conflict with those of the protected party.

  • Court approval

Any compensation settlement arising from a protected party’s claim will not be binding unless it has been approved by the court. The reasoning behind this is so that the court can ensure that the settlement is fair and that the compensation is properly invested for the protected party.

In the case of Dunhill outlined above, the court decided that, because the Claimant did in fact lack the capacity to deal with a claim of such complexity and because the original settlement had not been approved, the matter could be reopened and the Claimant could proceed with her larger claim.

  • The investment of compensation

If the court considers the protected party to lack the capacity to manage or control the money recovered, and if the settlement was for under £50,000, the court can invest the sum on behalf of the protected party.

Where the sum is for more than £50,000, the court will order that the litigation friend apply to the Court of Protection for the appointment of a deputy. It will be the deputy’s role to make decisions on welfare, health care and financial matters on behalf of the protected party.

Any person over the age of 18 can be a deputy, with the approval of the Court of Protection. However, where the protected party has received a large settlement, then a professional deputy will almost always be appropriate.

  • Limitation

One further protection for individuals who lack mental capacity relates to the time limit within which they must bring their claim, otherwise known as ‘limitation’. Personal injury claims must be initiated within the court within three years of the date of the injury, or, if later, three years from the date that the individual had knowledge of the injury and the negligent party’s identity.

However, when someone is of unsound mind, as defined by the MCA 2005, the three year time limit will not start to run until they are no longer under that disability. The time runs from that date, rather than the date of the accident (or the date of knowledge). Sadly, however, some brain injury victims never regain the mental capacity needed to bring a claim themselves.

Final thoughts

Mental capacity is a sensitive issue that needs to be given careful consideration, not just at the outset, but throughout the entirety of any personal injury claim, particularly those involving brain injury. Fortunately, the law provides numerous safeguards which preserve access to justice for those who lack the capacity to make decisions and provide instructions themselves.

It is vital that brain injury survivors and their families seek the advice of experienced lawyers who have the knowledge and skill to be able to conduct such complex claims, whilst protecting the interests of their clients and maximising the amount of compensation which they deserve