Q&As

In civil proceedings what is the effect of a claimant who is diagnosed with severe dementia, and confirmed to lack the mental capacity to make her own decisions, on being able to produce and rely on her own witness evidence?

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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk
Published on LexisPSL on 26/09/2016

The following PI & Clinical Negligence Q&A Produced in partnership with Georgia Whiting of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • In civil proceedings what is the effect of a claimant who is diagnosed with severe dementia, and confirmed to lack the mental capacity to make her own decisions, on being able to produce and rely on her own witness evidence?

When considering the question of capacity to conduct litigation, it must be ascertained whether or not the individual in question is capable of understanding information relevant to the litigation, retaining that information evaluating the information and communicating a decision (Masterman-Lister v Brutton & Co).

In civil proceedings, CPR 21 applies where a person lacks capacity to conduct proceedings (see also CPR PD 21), and if proceedings are to be conducted in the County Court, High Court, Family Court or Court of Protection a litigation friend must be appointed to give instructions and otherwise conduct the proceedings on their behalf.

As per CPR 21, the test for capacity, which applies only in relation to section 2(1) of the Mental Capacity Act 2005 (MCA 2005) is set out:

‘For the purposes of this Act, a person lacks capacity

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