In an article first written for the September 2024 edition of PI Focus magazine, senior associate Charlotte Foster discusses some of the issues that arise when a catastrophic injury claimant’s lack of capacity is not caused by the negligent act.
Where a personal injury claimant has sustained a traumatic brain injury (“TBI”) as a result of their involvement in an accident, the issue of capacity, especially in relation to them instructing their legal advisors and managing their property and affairs is frequently considered. However, what happens when a claimant sustains a catastrophic injury that is not a TBI, but the question about their litigation and financial capacity arises because of a pre-existing disability, i.e. there is no causal link between the injury and their deemed lack of capacity?
Let’s consider a case study of a claimant who is profoundly deaf from birth but, despite this, before their injury, was living life to the full. They were employed full-time and enjoyed several hobbies outside of work, including adrenaline-fuelled activities. They hoped to marry their partner and have a family together. They managed their day-to-day finances independently.
Following their injury, they knew they were likely to be awarded an eight-figure damages sum that would need to be managed and invested to ensure it met their needs for the rest of their life. Day-to-day decisions were no longer what they were. Although they were fortunate to have significant interim funds available, they were now being asked which wheelchair-accessible vehicle they would like to purchase or which all-terrain wheelchair they preferred. They needed to consider their long-term accommodation: where they wanted to buy a property, how much living space they needed, and any adaptations required to meet their changed needs. They also had to weigh up the impact of the decisions they were being asked to make on their eventual personal injury award.
Decisions like these are difficult for any claimant because they have never found themselves in this situation before and do not have any life experience to draw on to assist them. Even with the support of an experienced treating team (case manager, occupational therapist and physiotherapist), this claimant simply could not understand, retain and use or weigh the relevant information and make an informed decision. They could not remember what had been discussed previously and looked to someone close to them to decide for them. These issues arose despite there being no evidence that the accident had aggravated their underlying hearing problems or language deficits.
As their legal advisor, how do you approach this conundrum?
Expert evidence
One of several definitions of ‘capacity’ is “the ability or power to do something”. If it is determined that an individual lacks capacity, they are, in effect, being denied a fundamental right. Consequently, the conclusion that they lack capacity cannot be reached lightly. It is imperative all parties to a claim fully explore this issue.
The principles of the Mental Capacity Act 2005 (“MCA”) provide that an individual is presumed to have capacity in all areas, and making an unwise decision does not mean a person lacks capacity.
The case of PC v City of York [2013] EWCA Civ 478 clarified that an assessment of capacity should address both the functional test of section 3(1) and diagnostic test at section 2(1) in that order, i.e. can the individual understand, retain, use or weigh information and communicate any decision and, if not, is the reason for this “because of an impairment of, or a disturbance in the functioning of, the mind or brain”. The diagnostic test in this case study is interesting, as the question arises as to whether the claimant’s deafness and related language delay per se fulfilled the diagnostic test. If the claimant does not satisfy the diagnostic test, then the presumption of capacity is not rebutted.
The first step is to identify the most appropriate expert. In this case study, perhaps this would have been a neuropsychologist with experience of working with people in the deaf community. Next, those instructing the expert to assess capacity must assist them by providing the requisite tools for their assessment. Their instructions need to make it clear that they must address the functional test before the diagnostic test. Consideration would also need to be given to an interpreter being present during the expert’s assessment and whether they were an interpreter skilled in using British Sign Language or Sign Supported English, as not all deaf people communicate in the same way. Even if it feels time-consuming and onerous, making suitable enquiries before instructing an expert will hopefully ensure the expert evidence obtained is watertight.
The treating team
Although expert evidence is needed, the wealth of evidence that can be gleaned from the claimant’s treating team should not be underestimated. The claimant’s case manager is the person who will often be asking the claimant to make the decisions outlined earlier. They are therefore ideally placed to provide an expert with examples of any difficulties the claimant has with decision-making. A proactive case manager will also immediately raise their concerns with the claimant and their legal team, especially if a good working relationship has been built between them. The choice of case manager is, therefore, integral to identifying any issues with the claimant’s capacity from the outset.
Section 1(3) of the MCA requires all possible steps to be taken to support someone to make decisions before the presumption can be rebutted. In this case study, interventions such as deaf awareness training for all professionals involved with the claimant, speech and language therapy for the claimant and sign language training for their rehabilitation and care teams would be crucial in fulfilling this principle of the MCA. Different ways of presenting information to the claimant would also need to be trialled, such as using flow charts, colour coding and pictures instead of only presenting them with the written word.
It is also essential that the claimant’s legal team is involved with the decisions being made by the claimant’s treating team when considering measures that could be put in place to assist decision-making. Achieving this is difficult without excellent communication between the legal and treating teams. However, a higher level of involvement with the claimant’s treating team inevitably has costs implications.
The recent Court of Appeal decision in Hadley v Przybylo [2024] EWCA Civ 250 thankfully means the costs of the claimant’s legal team attending rehabilitation case management meetings and their involvement in rehabilitation issues can be recoverable. However, it should be noted that this is still fact- and case-specific and does not provide blanket approval for these costs to be recovered.
The claim
It is worth bearing in mind whether a situation similar to this case study warrants Court of Protection counsel being instructed to advise, as some of the issues arising are outside the expertise of counsel specialising in personal injury. Personal injury counsel may take the same view.
The interplay between the Court of Protection and King’s Bench Division must be reflected upon. Is it for the King’s Bench Division to determine litigation capacity and the Court of Protection to determine financial capacity, i.e. whether a property and affairs deputy is required?
The other issue for careful consideration is the disclosure of documents to the Court of Protection and the King’s Bench Division. For example, if an expert is instructed to provide an opinion on capacity by the Court of Protection, permission is needed for it to be disclosed in the personal injury proceedings in the King’s Bench Division in accordance with section 12 of the Administration of Justice Act 1960.
It is well-argued in personal injury claims that a claimant’s capacity may fluctuate, and capacity is time and decision-specific. However, in this case study, it is arguable that due to the cause of the claimant’s lack of capacity, they are unlikely to regain capacity in the future. Therefore, it is even more important that the costs of a Property and Affairs Deputy for life are considered as part of the personal injury damages award. The attitude of the defendant’s legal team towards this issue is crucial because, as it stands, it is thought these costs are not technically recoverable as a matter of law.
It will be interesting to see a claim like the case study come before a judge and for this issue to be determined. We await such a judgment with bated breath.
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