PI Brief Update

Mental Capacity - Bill Braithwaite QC, Head of Exchange Chambers

08/10/13. We had a meeting of our Court of Protection team yesterday, and it highlighted the many areas of difficulty and dispute in relation to people who do not have mental capacity.

For me, as a specialist in catastrophic brain injury litigation, there are many difficult questions which arise in the course of a compensation claim; usually, they arise out of a combination of the issues whether the patient has mental capacity and, if not, who has precisely what power to decide precisely what on his or her behalf.

I had a consultation recently in which we are nearing the end of the road, but it has been a difficult journey. As lawyers, we do our utmost to represent our client to the best of our ability. That includes listening to them, hearing what they say, and taking their instructions. For example, if a client wants us to argue that he or she has mental capacity, it is our duty, subject to what I say below, to do so. Even if we think that the client may not have capacity (we do not decide the issue – that is for doctors and courts), we should do our best to obtain evidence to support capacity. Of course, the process of trying to find evidence to prove capacity might do the reverse, and demonstrate lack of capacity.

If the client continues to instruct the lawyers to argue that he or she has capacity, but all our efforts show the reverse, then our duty to the Court comes to the fore; we would, I think, have to ask the Court to decide the issue. We would be entitled to argue that the claimant does have capacity, despite the evidence we had collected, but we would not be entitled to conceal that evidence from the Court.

Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/

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