Claims involving a mentally incapacitated claimant

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Who lacks mental capacity?

Section 2(1) of the Mental Capacity Act 2005 (MCA 2005) sets out a specific test for deciding whether a person lacks mental capacity:

'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 test, MCA 2005, s 1 sets out five key principles which should be followed:

  1. •

    a person must be assumed to have capacity unless it is established that they lack capacity

  2. •

    a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success

  3. •

    a person is not to be treated as unable to make a decision merely because they make an unwise decision

  4. •

    an act done, or decision made, under MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in their best

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