Brain Injuries and Mental Capacity

A difficult issue that arises, particularly in cases where a Claimant has suffered a brain injury, is whether a person lacks the mental capacity to conduct legal proceedings on their own behalf.  Where a Claimant lacks such capacity the Court rules say that any settlement agreed with a Defendant e.g an insurance company must be approved by the Court.  It is a difficult issue as there is a balance between protecting people who lack capacity from making settlements that are far too low and on the other hand there is a presumption that people do have capacity and should only be deprived of such a fundamental human right after careful consideration. 

The Supreme Court recently considered the matter in the case of Dunhill v Burgin.  In June 1999 a Claimant suffered a severe head injury in a road traffic accident. At the door of the Court she accepted the sum of £12,500.00 which was a gross under valuation of her claim.  The claim was likely to have been worth more than £1million. 

She decided to instruct new solicitors who advised her that it was likely she lacked mental capacity and she should issue new Court proceedings as the previous settlement had not been approved by the Court. She sought a declaration that the original settlement should be set aside as it had not been approved by the Court. 

Under the Mental Capacity Act when considering capacity you must look at the actual decision that the person is being asked to make.  In this case it was argued because she had received bad legal advice and her case was put forward as a simple motor accident case that she had sufficient capacity to understand and give instructions to her solicitor in that case whereas if it was a complex brain injury case with lots of experts, witnesses and documents with a lot of money involved which is the case that should have been run she did not have capacity. The Court decided that the test of capacity to conduct proceedings is the capacity to conduct the actual claim which the Claimant in fact has rather than to conduct the claim as formulated by lawyers.

The mental capacity needed to instruct a solicitor in a claim was confirmed as having:-

  • The ability to recognise a problem;
  • The ability to obtain and understand and retain relevant information including legal advice;
  • The ability to weigh the information including information contained in legal advice and balance it in reaching a decision;
  • The ability to communicate that decision. 

The Court went on to hold that because the settlement had not been approved by the Court and the Claimant deprived of such protection that she could reopen matters and proceed with her large claim. 

I have acted for many Claimants who have suffered from brain injury.  Often clients present well and seem ok on the face of it.  However when you speak to relatives and investigate the case thoroughly frequently you find that they have had serious difficulties with being able to work, with relationships and manage their financial affairs.  I have personally come across a Criminal Injuries Compensation case which was settled for £20,000.00 which we managed to reopen and the Court awarded the maximum of £500,000.00.  It is very easy for head injury cases with serious financial consequences either now or many years in the future to be missed and under settled and I would advise anyone in a similar situation to Mrs Dunhill to seek legal advice from a solicitor, with a lot of experience of acting in brain injury cases, as to their position.