PI Brief Update

Experts and Mental Capacity - Bill Braithwaite QC, Head of Exchange Chambers

05/01/15. Still on the subject of experts, I read two reports about a client’s mental capacity recently, which emphasised to me the need for skilled legal management of evidential problems.

The client is keen to demonstrate that he has the mental capacity to manage his affairs, even though he sustained what, on any view, was a severe brain injury. He thinks he has recovered fully, and so do his family - or, at least, that’s what they say.

One eminent expert considers that the individual does have capacity, because he seemed to be able to hold a conversation. The other one has recorded a series of questions - the best I've yet seen in this area. The answers are truly revealing, and raise serious questions about whether the person does have capacity.

There is a traditional view, with which I disagree, that the opinion of a medically qualified expert carries more weight in personal injury matters than that of someone without a medical qualification. Of course, that depends on the circumstances, but it is still sometimes canvassed in mental capacity issues. I feel that neuropsychology may be the most important opinion on this topic, although, as always, it depends on the experts involved.

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

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