Challenging the claimant’s lack of capacity in injury and medical claims

Recently I dealt with a claim where the lack or otherwise of financial capacity  was a central issue.  These are expensive issues in civil litigation because the cost of a professional running the finances of an individual can be significant.   For a claimant with a large award or no suitable family member to assist, a suitably experienced solicitor is required, but it is not an inexpensive option.

Capacity is a constant issue in clinical negligence and injury  litigation. Many claimants suffered head injuries as a result of events and some have problems which pre-date or occur simultaneously with the injury but are not related to it.  Many things can impact on capacity from the more obvious acute brain injury to an underlying  degenerative condition such as dementia .

Capacity is a difficult issue and any potential claimant affected by this should seek assistance where necessary from lawyers who have expertise in these matters.

In clinical negligence the review of capacity is a necessary process  for many clients and  can vary   during the course of a case . For defendant lawyers there is often a pressure to challenge any alleged lack of capacity where possible because of the costs which can be involved.  Such challenges are  generally (but not always) unsuccessful, which begs the question whether it is worth the cost of disputing the evidence.

Whilst the  logic of challenging a potentially substantial bill is evident, the personal cost to the claimant and their family can be significant. Uncertainty as to whether they will receive help, or recover the full cost of assistance can lead to increased anxiety at a time when they have  enough with which to deal. In addition, it invariably means that there are further assessments for the claimant. Whilst in itself that might be considered simply inconvenient, it should be remembered that in a catastrophic injury case a claimant may see up to 14 experts  of varying specialities often for several hours at a time .  That is a considerable amount of scrutiny and review for someone who is vulnerable and not in the  best of health.

Some claimants are genuinely borderline in their ability to deal with finances in particular and it has to be remembered that the assessment of capacity is linked to the particular decision to be made. A person may have capacity to budget for groceries but be incapable of  managing substantial funds of £1 million or more.  Most people without any underlying issues might find that a challenge.

In my case due to the defendant solicitors challenging whether my client lacked capacity to manage her affairs (where there was in fact realistically little prospect of her being able to manage), two additional reports had to be obtained by the team dealing with her finances at obvious cost. There was also the additional work  which I  and those supporting her had to complete putting together the evidence to defeat the assertion that she could somehow manage.  Both teams put together extensive evidence in support to rebut this which led to a change of view by the defendants and ultimately an acceptance that my client required assistance.

I cannot say whether the defendants in my case think it was a worthwhile exercise challenging this issue in terms of time or funds.  In due course I will recover from them the cost of this additional work which is likely be substantial.  I imagine the defendant lawyers will also be paid for the work they have done on this issue. For my client it caused uncertainty in an already difficult case at a time when she was least able to deal with this.

Anecdotally I cannot think of many cases where a challenge by the defendants on capacity has been successful but I can think of several cases where there have been efforts to do so and many more cases where the cost of assistance has been disputed. Whilst the latter may be more reasonable, I would question the decision to challenge the former. I wonder whether this is a good use of NHS funds and I question whether this is not a process which causes anxiety and distress to the claimant with little prospect of success.

In my case, as with others, the evidence was finally overwhelming but the cost of that evidence, including additional reports and interviews, was so significant that it has added to the distress of my client. I am not so sure that this was at all useful, productive or indeed kind to someone who had been significantly damaged by the NHS and left with a lifelong disability.

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