Mental capacity assessments are becoming increasingly complex and pivotal in civil litigation, particularly in compensation proceedings.
As societal awareness of mental health issues grows and legal frameworks evolve, these assessments are playing a crucial role in ensuring fair and equitable outcomes for individuals seeking compensation for injuries or losses.
Such increased complexity of capacity issues, across a wide range of domains must now be given the time and consideration it deserves by medico-legal experts.
A changing landscape
In previous years capacity assessments were almost a footnote in expert reports and often restricted to the domains of property and affairs (finance) and capacity to litigate.
An individual’s capacity around financial decision making is only one of now many different aspects of capacity encountered in the Protected Party’s life from day to day.
Recent litigation mirrors these developments with many cases now requiring consideration for example around a claimant’s ability to interact with social media, make decisions in relation to consent for romantic and sexual relationships, contact with others and making care and accommodation decisions.
In many of these cases, the assessment of capacity across these and other domains would have first been ordered by the Court of Protection, invertedly enabling litigation experts to benefit from these in the formulation of their opinion for the Court .
Whether or not there has been any intervention from the Court of Protection, these assessments should be requested by the claimant solicitor in their instruction of relevant experts to enable them to better quantify the future needs of their client.
In complex cases involving traumatic brain injuries we sometimes see recommendations from capacity assessments that carry a consequential lifetime cost of millions of pounds.
The Role of Mental Capacity Assessments
Mental capacity assessments serve several key purposes in civil litigation:
Facilitating settlement negotiations: In many cases a lack of clarity in relation to a claimant’s mental capacity can significantly delay the settlement process.
By providing a clear picture of the claimant’s condition, both parties can engage in more informed negotiations and reach a fair agreement.
It is important that any settlement reached can meet all needs the claimant developed as the result of their injury.
Court of Protection and Deputyship fees need to be taken into account when preparing schedules of losses as a claimant may need multiple assessments for different types of decision making throughout their lifetime.
Determining capacity to litigate: Consideration must be given to whether the Claimant has the capacity to litigate in their own name, or whether they require the appointment of a Litigation Friend.
No case can be settled where the claimant lacks capacity until any agreed damages are approved by the court.
If capacity to litigate is absent but has not been identified then any settlement could subsequently be reopened and the matter re-litigated.
Exploring Additional Complications: Mental capacity assessments are often complicated by a preexisting neurological deficit or mental health history or where post injury the individual also develops complex mental health needs.
Its important that when commissioning as solicitors and undertaking such assessments as an expert that these complexities are properly considered and investigated.
Assessing the Impact of the Injury: When considering the impact that a traumatic brain injury has had on an individual, it is vital to consider any domains of capacity that might have been compromised so as to truly understand the long-term consequences of the injury and its impact on the individual.
Only then can there be a proper determination of the appropriate level of compensation that the person is entitled to.
Recent Developments in Mental Capacity Law
In recent years, there have been significant developments in mental capacity law, which have further elevated the importance of these assessments.
For example, the recent Supreme Court judgement on JB found that in order for a person to be deemed as having capacity to engage in sexual relations, they must have regard to the information relevant to that decision, which includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity.
It was found that in this case, JB, must be able to understand that information and he must be able to use and weight it as part of the decision making process.
In 2020 the significant case of Re ACC considered issues around the ‘general authority’ of a property and affairs deputy and set out specific circumstances in which the deputy would be required to obtain further authority from the Court.
Before Re ACC an appointed deputy would have still needed to apply to the Court of Protection for authority to act in litigation matters and to be able to be paid for that role.
However, following the judgment in Re ACC, an appointed deputy is now required to request authority from the Court of Protection in a number of other circumstances, including anything related to a health and welfare decision.
This includes if the deputy is required to arrange a capacity assessment for a health and welfare related decision such as engagement in sexual relations, use of social media or making decisions around care and support.
In these circumstances the deputy is now required to obtain ‘specific authority’ from the Court in order to arrange such capacity assessments and pay the relevant costs from P’s estate.
The decision in this case also extends to deputies obtaining three quotes where they are looking to obtain legal advice on behalf of P, and if such costs are anticipated to exceed £2,000 + VAT per annum, specific authority from the Court is also required.
More recently in the case of Re PW, the Court went further to say that professional deputies are required to obtain authority from the Court of Protection if they wish to appoint an in-house or connected investment manager on behalf of P.
This is due to the conflict of interest that arises on such instruction which cannot be extinguished by processes such as holding beauty parades or using a scorecard approach.
A further judgment of significance that was made this year was the case of Re PSG Trust Corporation Ltd, which concerned when P is in receipt of a settlement award and whether P should be informed of the value of that award.
It was found that the disclosure of a financial award to P falls within the authority of a property and affairs deputy, despite there being welfare issues that may arise from disclosing such information.
If it is found that P lacks capacity to make the decision regarding disclosure of the settlement award the deputy must then make a best interests decision.
The Judge held that in some cases this will be clear however in other cases an application may be required to be made to the Court.
Conclusion
Mental capacity assessments are playing an increasingly vital role in civil litigation, particularly in compensation proceedings.
By providing a comprehensive understanding of the claimant’s cognitive abilities and emotional state, these assessments can help ensure fair and equitable outcomes for individuals who have suffered injuries or losses.
As mental health awareness continues to grow and legal frameworks evolve, it is likely that the importance of mental capacity assessments will only increase in the years to come.
– Huw Ponting, Partner & Head of Personal Injury and Caroline Featherby, Managing Associate, Mental Capacity, Enable Law
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