Mental capacity following a traumatic brain injury

My name is Matt Tuff and I am a Senior Associate solicitor in the Major Trauma Department at Moore Barlow. Today I will be talking about the issue of mental capacity following a traumatic brain injury.  

Cognitive effects of brain injury

After a moderate or severe traumatic brain injury, it is not uncommon for a person to demonstrate cognitive defects, such as impaired memory and concentration, difficulties processing new information and a reduced ability to plan or solve problems. A brain injury survivor may also lack ‘Mental Capacity’, which is defined as the ability to make a decision in relation to a particular matter because of an impairment or disturbance in the functioning of the brain or mind. 

Post traumatic amnesia

In the early stages after a significant traumatic brain injury, a person may have post traumatic amnesia (PTA). This is a state where the person is unable to form continuous memories (for example they may forget what happened earlier in the day or the day before). They may exhibit confusion or agitation. They may be unable to understand why they are in hospital and may lack insight into their injury. During this period, it is likely that they would lack capacity to make important decisions. However, even after they have recovered from PTA (usually within a few weeks), they may still lack capacity to make decisions.  

What is mental capacity?

The question of capacity might be described as ‘issue-specific’ – in other words, a person may have capacity to make a decision on one matter or issue, but not on another. 

A person lacks capacity in relation to a particular issue if they are unable to make a decision due to an inability to: 

  • understand the information relevant to the decision, 
  • to retain the information long enough for the purpose of reaching the decision, 
  • to weigh up the information relevant to the  decision, 
  • or to communicate their decision (by any means).  

Mental Capacity Act 2005

The most important piece of legislation on this topic is the Mental Capacity Act 2005. This act establishes a number of important principles, including the following: 

  • A person must be assumed to have capacity, unless it is clearly established that they lack capacity (for example you cannot merely assume that, because a person is known to have a brain injury, they will lack capacity)
  • 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. 
  • A person is not to be treated as unable to make a decision merely because they make an unwise decision. 
  • An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.

At Moore Barlow, we often have clients who, because of the acquired brain injury, may not have capacity to conduct the litigation (that is the capacity to understand the advice of their solicitor and make decisions in relation to the case) and/or the capacity to manage their financial affairs.  

Assisting someone with impaired mental capacity

Where a person lacks capacity to conduct the litigation, a ‘Litigation Friend’ needs to be appointed. This is someone who assists them with making decisions in relation to the legal case and is often a family member or close friend. 

Where a person lacks the capacity to manage their finances, an application needs to be made to the Court of Protection to appoint a ‘Deputy’. This is a person appointed by the court to make decisions for the brain injury survivor about their finances and property. A Deputy is often a professional (usually a solicitor) but they can be a family member. A Deputy should work closely with the client and, where at all possible, help them to participate in making decisions.  

As regards capacity to manage finances, a brain injury can cause a person to lose inhibition and act impulsively. It can create vulnerability. The brain injury survivor may be susceptible to making regular impulsive or irrational purchases. They may be vulnerable to people who would seek to take advantage of them or to persuade them to part with their compensation. Having a Deputy, who is subject to the oversight of the court of protection, helps protect against these risks. 

Obtaining court approval to settle a claim

Where a person lacks capacity to conduct the litigation, no settlement of the claim can be reached, and strictly speaking no interim payment should be made (an interim payment is a payment of part of the compensation before the end of the claim), without the approval of the court. The purpose of this is to protect the interests of people who do not have capacity to make decisions for themselves. Obtaining court approval involves a relatively informal court hearing.  

How Moore Barlow can help

At Moore Barlow, we regularly assist people who, as a result of their acquired brain injury, lack mental capacity to make decisions. If you have any questions on this topic do not hesitate to contact me, Matt Tuff, Senior Associate in the Major Trauma Service at Moore Barlow.