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A question of capacity in injury and negligence claims

Posted: 15/02/2017


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.

Charlene McAuliffe, an associate in the personal injury team at Penningtons Manches LLP, said: “Our team acts for many elderly individuals who, sadly, lose their capacity to manage their own litigation as a result of illness or ageing, and not necessarily due to the injuries on which their case is based. It is important that solicitors are able to recognise situations in which their client may be losing capacity and respond quickly, ensuring capacity is assessed in line with the MCA and provisions are put in place to allow the individual to continue to pursue their claim with the right assistance. While this is often a difficult process for an individual in decline, and sometimes the family, to accept, such steps need to be taken to ensure that the client is protected. Unfortunately we have seen instances where solicitors without specialist knowledge have been instructed to deal with claims for elderly clients and, as a result, the case has been compromised.”

The personal injury and clinical negligence teams at Penningtons Manches can advise on the various steps involved in the process and how these affect the progress and investigation of any potential injury claim. 


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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority.

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