Everyone has the right to make his or her own choices. The Mental Capacity Act (MCA) 2005 is designed to protect and empower vulnerable individuals who may lack the mental capacity to make decisions about their care, treatment, welfare or finances. The MCA also plays an important role in legal proceedings, and makes it clear that capacity is to be judged on the basis of the activity or decision in question - so for instance, somebody may have capacity to litigate a claim but not to manage a large damages award.

Individuals are considered to have capacity to enter into litigation and legal proceedings if they are able to:

  • fully comprehend the course of proceedings during the trial, so as to make a proper defence;
  • appreciate that they might challenge any jurors to whom they may object;
  • comprehend the evidence; or
  • give proper instructions to legal representatives.

Where individuals lack the ability to do this, they are considered to be a ‘protected party’ in the eyes of the law.

Examples of people who may lack capacity include those with dementia, a severe learning disability, a brain injury, a mental health condition or those who have suffered a stoke. Sometimes clients will lack capacity as a result of the injuries caused by a negligent act or treatment which forms the basis of the litigation but, on other occasions, a client may have a pre-existing cognitive impairment which means that they lack capacity in certain respects. Individuals could also lose capacity to litigate mid-way through a claim due to illness or the ageing process. Whatever the potential cause, it is important to consider a client’s capacity at an early stage, by arranging assessments with appropriate experts focused on the individual’s ability to understand and conduct the claim themselves. If an individual lacks capacity, the claim will need to be brought by a litigation friend on their behalf and it will be necessary to consider whether the individual has capacity to manage a damages award following resolution of the claim.