Medical negligence claims can be complex under any circumstances, but when the injured person lacks mental capacity, the legal and practical challenges can increase.
Questions arise about who can make decisions, how proceedings are conducted and how the injured person’s best interests are protected.
This guide explores how such claims proceed and how having a Lasting Power of Attorney in place can often play a crucial role in making the process more straight-forward.
What does ‘lack of mental capacity’ mean?
A person lacks mental capacity if, at the time a decision needs to be made, they cannot understand, remember or weigh up the information to make that decision, nor communicate their decision.
This could be because of:
- Severe brain injury
- Stroke
- Dementia
- Learning disabilities
- Mental health conditions
- Being unconscious due to anaesthesia or injury
Mental capacity is both decision-specific and time-specific, meaning it can vary depending on the complexity of the decision and may fluctuate over time. Someone may be able to make everyday choices but lack the ability to understand complex legal or financial matters.
Who may lack capacity? Common examples in medical negligence claims
Lack of capacity is not limited to one group. It can arise at any stage of life and can affect people of any age, from children to elderly adults.
1. Children
Under the law in England and Wales, children under 18 are generally presumed not to have full legal capacity to conduct litigation themselves. While older children may be considered ‘Gillick competent’ to make certain medical decisions, they will still usually require a litigation friend to pursue a claim regardless of maturity.
2. Adults with acquired brain injuries
People who suffer traumatic brain injuries may lose the ability to make informed decisions. Serious brain injuries can also affect thinking, memory and communication.
Example:
An adult experiences a delay in diagnosis of a brain haemorrhage, leading to permanent cognitive deficits. They may no longer be able to understand legal advice or make decisions about their claim.
3. Adults with dementia or Alzheimer's
Conditions such as dementia and Alzheimer’s disease can progressively impair memory, reasoning and decision-making abilities.
Example:
An elderly patient receives substandard care in a hospital setting and develops complications. Due to advanced dementia, they are unable to instruct solicitors or understand the nature of a legal claim.
4. People with learning disabilities
Some people may never have had the capacity to make complex decisions, depending on the severity of their condition.
Example:
A person with significant learning disabilities receives negligent medical treatment. Even if they can communicate basic preferences, they may not be able to engage with the legal process.
5. People with severe mental health conditions
Certain psychiatric conditions can impair a person’s ability to make decisions, particularly during acute episodes.
Example:
A patient experiencing a severe psychotic episode may temporarily lack the capacity to understand or participate in legal proceedings.
How is lack of mental capacity assessed?
Whatever the context, capacity should always be assessed carefully and on a case-by-case basis, often with input from medical professionals such as a neuropsychiatrist.
Lack of mental capacity is governed by the Mental Capacity Act 2005 which sets out how to decide if someone lacks capacity. Courts look at each decision individually, not just a person’s diagnosis. Different decisions require different levels of understanding.
As capacity can worsen or improve during proceedings, particularly in cases involving brain injury or mental illness, in some cases capacity will need to be reviewed throughout the life of a medical negligence claim.
There also has to be a balance between autonomy and protection. The court must ensure individuals are neither exposed to risk nor unnecessarily deprived of their right to participate.
Can a medical negligence claim still be brought?
Yes. Lacking mental capacity does not prevent a medical negligence claim from being pursued. However, the process differs from standard claims to protect the rights of the claimant.
Where a person (often referred to as ‘the protected party’) cannot conduct litigation themselves, the court requires a litigation friend to act on their behalf. Even if someone can speak or show preferences, they may still need support to pursue a claim.
It is important to note that lacking capacity in one area does not mean a person cannot be involved at all. For example, someone may not be able to manage finances or make legal decisions about a claim, but may still be able to share their views, wishes and experiences.
We often see situations where a person cannot manage their finances or legal affairs, but they are still able to understand and consent to certain aspects of the claim, such as allowing access to their medical records.
In these cases, we will involve the person as much as possible, while working alongside their litigation friend or attorney to ensure decisions are made in their best interests.
Where possible, we will always involve the person directly and take their instructions into account alongside their litigation friend.
Role of a Litigation Friend
A litigation friend is appointed to:
- Make decisions about the case
- Instruct solicitors
- Act in the best interests of the protected party
This is often a close family member, but it can also be a professional if no suitable relative is available.
Importantly, the litigation friend does not benefit personally from the claim. They are there solely to represent the injured person.
How the claim proceeds
The core elements of a medical negligence claim remain the same:
- Establishing breach of duty– proving that medical care fell below acceptable standards
- Causation – showing that the breach caused harm
- Quantum – valuing the compensation required
However, when capacity is lacking, additional safeguards apply:
1. Court oversight - Any settlement must be approved by the court to ensure it is in the protected party’s best interests. This is known as an approval hearing.
2. Expert evidence on capacity - Medical evidence is often required to confirm that the individual lacks capacity and to determine whether this is temporary or permanent.
3. Management of compensation - If compensation is awarded, the court will decide how it is managed if the claimant is also a protected beneficiary, i.e., they lack the ability to manage and control their money
4. No time limit restrictions – the usual three-year time limit for making a medical negligence claim is removed for protected parties
The importance of Lasting Power of Attorney
Many people assume that they can act on behalf of a loved one, but that is not always the case. We also see a lot of litigation friends struggling to get access to a claimant’s medical records for the person who lacks capacity.
This is where a Lasting Power of Attorney (LPA) can make a medical negligence claim smooth running.
An LPA is a legal document that allows someone to make decisions on another person’s behalf if they lose mental capacity.
There are two types of LPAs and you can have one or both:
- Property and Financial Affairs LPA – covering bank accounts, bills, benefits, pensions, investments, and even selling your home or other assets if needed.
- Health and Welfare LPA – covering decisions about your medical care, living arrangements, life-sustaining treatments, and day-to-day wellbeing.
However, you need to set an LPA up while you are still fully capable of making and consenting to the arrangement. It must also be registered with the Office of Public Guardian (OPG) before it comes into force.
In medical negligence claims, having an LPA can be valuable for numerous reasons.
1. Early decision-making
If an LPA is already in place before capacity is lost, the appointed attorney can step in immediately to instruct solicitors, access medical records or make decisions about care and treatment. This avoids delays and uncertainty.
2. Avoiding court applications
Without a Power of Attorney, loved ones may need to apply to the Court of Protection to become a deputy. This process not only takes time, it can also be costly.
3. Continuity and trust
An LPA allows individuals to choose someone they trust in advance, rather than leaving decisions to court appointment.
4. Supporting the Litigation Friend role
While an attorney and a litigation friend are legally distinct roles, in practice the same person often fulfils both. Having an LPA in place strengthens their authority and simplifies decision-making.
What if there is no Power of Attorney?
If no LPA exists and the individual lacks capacity, the court will appoint a deputy through the Court of Protection.
This deputy can manage finances, make certain welfare decisions and support the legal claim. However, this route is generally slower and more administratively burdensome than relying on an existing LPA.
What about Deprivation of Liberty Safeguards (DoLS)?
In some cases, particularly in hospitals or care settings, a person who lacks capacity may be subject to a Deprivation of Liberty Safeguards (DoLS) assessment. This is a legal process to ensure that any restrictions on a person’s freedom are necessary, proportionate and in their best interests.
A DoLS authorisation is usually put in place where someone needs continuous care and supervision and is not free to leave, but lacks the capacity to agree to those arrangements. It could also be used to override refusal of treatment that they need to improve their quality of life.
Examples might include an elderly patient with dementia being kept on a hospital ward for their own safety, or a vulnerable adult in a care home who requires constant supervision and cannot leave freely.
Why this matters for medical negligence claims
DoLS can be highly relevant in certain types of claims, particularly those involving hospital care, discharge planning or failures in care.
It may help to show:
- The level of supervision and care required at the time
- The person’s mental capacity during a specific period
- Whether decisions were made in their best interests
- Delays in discharge or inappropriate placement
From a practical point, families are not always told clearly when a DoLS is in place and the terminology can be unfamiliar.
If you are unsure whether your loved one has been subject to a DoLS authorisation, this is something your solicitor can investigate as part of the medical records and care history and consider whether it is relevant to the case.
Key practical considerations for families
If your family member has been harmed due to medical negligence but lacks mental capacity, it does add a layer of complexity to medical negligence claims but it does not prevent justice from being pursued.
With the support of a litigation friend, court oversight and appropriate legal structures, claims can proceed effectively. Ultimately, the legal framework is designed to protect some of the most vulnerable individuals, ensuring their rights are upheld and that they receive the compensation and care they deserve.
If you are dealing with a situation involving loss of capacity and potential medical negligence, seeking early legal advice can make a significant difference to both the process and the outcome.
It may also be beneficial to seek specialist advice from a law firm like us here at Medical Solicitors who focus solely on medical negligence claims. Claims involving protected parties require expertise in both clinical negligence and Court of Protection work, which our experienced team of medical lawyers do have.
Overall, the legal process should prioritise the injured person’s welfare. Every decision, from treatment to settlement, must be done in their best interest.
As a client-focused law firm, we are there for claimants and their litigation friends at every step, providing clear guidance, compassionate support and practical help throughout the claims process.
