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Capacity and Medical Negligence Claims

Reasons to choose Wilson Browne

Medical Negligence claims are brought on behalf of an injured person, or somebody who may be representing an injured person.

There are occasions where the injured person may lack capacity, and therefore will require somebody to make decisions on their behalf.

In accordance with the Mental Capacity Act 2005, a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for himself/herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

Generally, if a person is deemed to lack capacity, it is considered that they do not have the legal competence to make informed decisions, which would be in their best interest. If an injured person is unable to make a legal decision due to capacity reasons, somebody can be instructed to represent the injured person when bringing a medical negligence claim. Generally, in these circumstances, the injured person will have somebody representing them not only in a medical negligence claim, but with their personal affairs too. A Lasting Power of Attorney is granted to a person, usually a family members or close friends, to make decisions on behalf of a person who lacks capacity, by way of a legal document.

In medical negligence cases, if a person has a Lasting Power of Attorney, they will be given the role of the Claimant and will be able to make decision in respect of the case and on behalf of the injured person; they will also be named and will enter into the funding agreement with their instructed solicitors.

If a person appears to lack capacity and does not have any legal documents entitling another person to have Power of Attorney on their behalf, solicitors can request a capacity assessment from an individuals General Practitioner. This will help to establish whether capacity is present or not, as it is imperative that a person can understand the legal information provided to them and be able to provide their instructions throughout a case.

If a capacity assessment concludes that a person does not have capacity, at Wilson Browne Solicitors, we ensure that a Litigation Friend is appointed on the individual’s behalf. A Litigation Friend is a person who can be instructed to make decisions in an injured person’s best interest in respect of their claim. A Certificate of Suitability will also be completed in these circumstances.  If it arises that decisions need to be made in respect of an injured person’s personal affairs, assistance can also be provided by our Court of Protection team.

At Wilson Browne Solicitors, we off a free no-obligation conversation in respect of whether you have concerns about somebody who you may wish to assist with a case as a result of capacity issues.

For more information email or call us on 0800 088 6004.

Gemma Pabari


Gemma Pabari


Gemma is a Solicitor within the Medical Negligence Team. Gemma has experience in advising on a range of Medical Negligence claims, to include delays in diagnosing and treating Cauda Equina Syndrome, representing clients on matters arising from complications with pregnancy.