Ahead of the Adult Brain Injury Conference hosted by Brain Injury Group, Edward Lamb KC of Deka Chambers speaks to us about the growing importance of the Court of Protection in injury work, the limits of current case law and why getting capacity decisions right is one of the most consequential things a litigator can do.
How has the legal landscape around serious brain injury and capacity changed in recent years?
There has been a much greater appreciation in the last five years that practitioners in injury work and clinical negligence work need a working knowledge of the Court of Protection.
It is a separate jurisdiction. but to run cases effectively in the civil courts, you increasingly have to understand Court of Protection practice. That awareness has extended to the judiciary too.
Judges are now far more alert to Court of Protection issues running alongside civil proceedings, issues that would previously have passed relatively unnoticed.
There is also a growing understanding that when you are structuring and approving settlements in injury cases, you have to look beyond simply getting something approved.
You have to ask: what is this person going to need once proceedings have ended? How do we achieve as much autonomy as possible for a brain-injured person who lacks capacity?
Those questions are very much at the forefront now in a way they simply were not before.
What is actually at stake for a client when their capacity is legally contested?
Everything, frankly.
It is about achieving dignity, autonomy and giving those clients who lack capacity the best life possible within the new characteristics they have acquired as a result of their brain injury.
The purpose of the Mental Capacity Act is not to flip a switch and extinguish someone’s rights.
It is to structure assistance – to help people with brain injuries who lack capacity to make decisions, or to help them make those decisions wherever possible, so they can live as full a life as possible.
A finding of capacity, or lack of it, has profound consequences either way.
Edward Lamb KC
If someone who genuinely lacks capacity is found to have capacity, there are real difficulties in moving forward and securing appropriate support.
The converse is equally serious. Getting those decisions right matters enormously.
Is it common for someone to have capacity in some areas but not others, and how does that play out in practice?
Very common. And those are the hardest cases to handle.
The case law is quite limiting on what damages can be recovered for funding assistance where there is a finding of capacity, so cases that sit right on the cusp, where someone may have capacity for some decisions but not others, are extremely difficult to structure.
I think the civil courts are still quite bad at dealing with those cases, and we as lawyers do what we can to structure settlements around them.
Everything must be done to try to help a client achieve or maintain capacity where possible.
But there remain cases where very difficult decisions have to be made when the evidence is finely balanced.
The relatively recent case law in this area is not, in my view, particularly helpful, and that remains an ongoing problem.
Is there tension between what clinicians say about capacity and what the law requires?
Historically, there has been an enormous variation in the quality of expert reporting on capacity.
All too often, you would find rather blanket assertions – a broad conclusion reached without the rigour that the test under the Mental Capacity Act actually demands.
That comes partly from the clinical context.
Clinicians make capacity assessments day in, day out, often rapidly and practically.
What we have seen more recently, through better training for doctors, lawyers and the judiciary, is a much greater sophistication in applying the statutory test.
I have seen real improvement in the way experts analyse what a lack of capacity actually means in law. But I am constantly reminding experts that it is not sufficient to reach a broad conclusion.
You must identify the specific decision to be made, then apply the test under the Act scrupulously to that decision. That is what the law requires.
Is the current system delivering for brain injury claimants, or are there structural problems that need to be resolved?
There is a great deal more work to be done.
In November 2024 the Civil Justice Council produced a report on on capacity that identified a number of problems in this area, not least the absence of a clear procedural framework for resolving disputes about capacity within civil claims.
There are procedural rules about what happens once a lack of capacity has been established, but there is far less clarity about the process by which a dispute over capacity should be resolved in the first place. I think that gap needs to be addressed.
The judiciary has improved significantly in managing those disputes, but the procedural framework needs to reflect the fundamental importance of capacity determinations.
Where capacity is in dispute, litigants should understand the precise process they need to follow before a decision is reached.
Finally, what can delegates expect from Day 2 of the Adult Brain Injury Conference?
It is going to be a genuinely interesting day.
We will hear from Emily De Vulder on practical strategies for risk management and crisis response in complex brain injury cases – understanding how to prepare for the worst and put appropriate structures in place, and how that feeds into the valuation of claims.
Sophia Roper KC will then address the difficult balance between protection and autonomy in intimate relations, including sexual relations, marriage and coercive control.
All very live issues in the Court of Protection, and important for litigators to understand, not least because of the potential costs consequences when claiming future case management needs.
We will also hear from Peter Edwards on how financial settlements are handled in divorce proceedings following a large personal injury award: something that comes up all too often when catastrophic accidents lead, sadly, to relationship breakdown.
I have the privilege of chairing proceedings, and I will be offering some thoughts on how to maximise Court of Protection knowledge within civil proceedings to maximise claims.
The aim, by the end of the two days, is that everyone leaves with a much clearer understanding of how these issues interact within injury litigation – and why they cannot afford to ignore them.
Edward Lamb KC is a barrister at Deka Chambers specialising in serious injury, clinical negligence and the Court of Protection.
The Adult Brain Injury Conference, taking place June on June 11 and 12 at the Lowry (Salford Quays) in Manchester.
Find out more and secure your seat here.
