Mental capacity in personal injury claims
Mental capacity in personal injury claims

The following PI & Clinical Negligence guidance note provides comprehensive and up to date legal information covering:

  • Mental capacity in personal injury claims
  • Defining mental capacity
  • The test for who lacks mental capacity
  • The Court of Protection

Defining mental capacity

A person lacks capacity in relation to a matter if, at the relevant time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

When considering the above test, it does not matter whether the disturbance is permanent or temporary. For the purposes of limitation, however, it is crucial to investigate whether at any time since the accident, the mentally incapacitated client has had, or temporarily recovered, capacity. Although time will not run against a claimant who lacks capacity to conduct it, once capacity has been regained, however briefly, it will not cease running from that point onwards (see Practice Note: Limitation periods for persons under a disability and claims involving deliberate or mistaken concealment of facts).

The inability to make a decision must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Individuals with a range of problems such as psychiatric illness, learning disabilities, dementia and brain damage may lack mental capacity. A person may have capacity in relation to some matters but not others. As noted elsewhere, a person may lack litigation capacity but may have capacity for their financial affairs.

An individual who lacks capacity is defined as a