Mental capacity and clinical negligence – Recent developments, practical issues and traps for the unwary

October 9, 2024

This article was originally published in AvMA Lawyers Service Newsletter June 2024
(Mental capacity and clinical negligence)

By Matthew Stockwell

With the blessing (or occasional curse) of a slightly unusual practice, litigating a mix of neurologically orientated trauma and clinical negligence claims whilst maintaining a complimentary practice in the Court of Protection, I have encountered lots of odd, interesting and unexpected mental capacity issues. Professional experience and reported cases suggest that identifying and successfully managing such issues can present particular challenges for the clinical negligence practitioner. This article is intended to signpost some of those issues, and provide an aid memoir and practical guide for when you next encounter one.

Initial Considerations

Some clinical negligence practitioners may have limited experience acting for a client with a brain injury or other cause of cognitive impairment. Initially, it is important to consider the following:

• Identify the client, accepting that the initial introduction may be made by a relative or carer (who may or may not be acting in a representative capacity).
• Take instructions from and advise the client directly, confirming the involvement of any intermediary.
• Ensure that the client can give instructions freely and is not under the influence of another person (whilst this is more commonly an issue in private client work, clinical negligence practitioners must also be alive to the potential for undue influence or financial abuse).
• Identify any potential conflicts of interest at an early stage (again, whilst this is more commonly an issue in private client work, it is good practice here).
• Include within any initial checklist, consideration of whether the client has capacity to conduct the claim as initially envisaged, keeping the issue under timely review.

You will find the full Mental Capacity Act (MCA) Code of Practice (a comprehensive guide to the MCA and its intended application) and other helpful resources here:

https://www.gov.uk/government/collections/mental-capacity-act-making-decisions

Particular care must be taken in relation to communication:

• Every effort must be made to overcome any difficulties of communication (as required by section 1(3) of the MCA).
• Adopt appropriate interview strategies (this may include particular care about timing, explanation of legal concepts or documents, review of topics etc – above all be patient).
• Be careful not to assume understanding.
• Make detailed attendance notes.
• If there is any doubt regarding the issue of capacity, follow the ‘golden rule’ and seek confirmation from an appropriately qualified medical practitioner.

Recognition and Overlap

So, how do we identify mental capacity as a potential issue? What are the clues to prompt you to investigate further?

The most important thing to emphasise is the need to start with the raw material and consider ALL the available evidence. The landscape for clinical negligence litigation has changed fundamentally over the last two decades and the scope of documentary disclosure, in particular, has expanded beyond recognition (prompted by migration of practices from the large loss insurance sector and the greater prominence of dishonesty allegations). On a case-by-case basis, ALL the available evidence may include (and this is not an exhaustive list):

• Medico-legal reports.
• Clinical records.
• Care and case management records.
• Education, other health and social welfare records.
• Occupational, HMRC, DWP or other public records – any interaction.
• Reports or witness statements from the appointed case manager and support workers.
• Reports and notes from treating therapists.
• Witness evidence from family members (and friends and colleagues as appropriate).
• The client’s social and domestic interactions and digital footprint.

The documentation or other evidence must be obtained, collated, shared (i.e. with counsel and experts, so everyone has the same, complete picture) and tested or cross-referenced for consistency. It can be an enormous exercise, must be done carefully in each case, and is something that is commonly underestimated (by practitioners and Judges alike) for the purposes of budgeting.

Once you have the benefit of all the available evidence, what might you be looking for within it? My favoured approach is to be alert to possible brain injury (or other impairment or disturbance of normal functioning) adopting a high index of suspicion. Brain injury can manifest itself in an infinite variety of ways, with the following effects commonly reported:

Physical effects

• Movement and coordination.
• Balance and dizziness.
• Dyspraxia.
• Loss of sensation / sensory impairment.
• Altered sense of smell and taste.
• Fatigue and tiredness.
• Headaches and other pain.
• Speaking and swallowing disorders.
• Epilepsy.
• Bladder and bowel incontinence.

Cognitive effects

• Memory.
• Attention.
• Concentration.
• Speed of processing.
• Executive function (planning, organising and problem-solving).
• Spatial and perceptual difficulties.
• Language difficulties.

Emotional and behaviour effects

• Agitation.
• Anger and irritability.
• Lack of insight and awareness.
• Impulsivity and disinhibition.
• Emotional blunting.
• Emotional lability.
• Self-centredness.
• Family abuse or dysfunction.
• Apathy and poor motivation.
• Depression.
• Anxiety.
• Inflexibility and rigidity.
• Sexual problems.

Mental capacity is a more obvious issue when a client presents with one or more cognitive difficulties, but an injured person exhibiting physical or behavioural changes may have an undiagnosed brain injury which in turn impacts on cognition, i.e. if an insult has been sufficient to result in impairment in one aspect of functioning it may well have caused damage to others.

Of course, some or all of the effects listed above may be attributable to other factors, but the important thing is to investigate a potential neurological cause if the client’s presentation is not otherwise adequately explained.

Equally, some or all of these features may be characteristics of a client’s pre-injured state or personality traits. So, it is important for clinical negligence practitioners to consider the before and after position by reference to information from e.g. family, friends and colleagues. Do they behave differently? Do they now cope less well with some tasks or in some circumstances? Is there a difference between the client’s assessment of their functioning and that of others? This question, in particular, is relevant to ‘insight’ and a central part of the useful BINI (Brain Injury Needs Indicator) tool developed by Brainkind. https://brainkind.org/for-professionals/brain-injury-needs-indicator-bini/ In my experience, in many cases where there has been a delay in identifying mental capacity as a potential issue, some degree of overreliance on the self reported competency of the client is a factor. So tools like BINI are a useful safeguard.

Why is mental capacity a particular challenge for the clinical negligence practitioner? And how can you meet it?

Firstly, there is increasing recognition that brain injuries and other cognitive disturbances are under reported within the general population with many, if not perhaps most, going without formal investigation or diagnosis.

We start investigating cases on the basis that a client suspects inadequate care (or, at least, is looking for answers) so it is at least possible in each case that a hospital or treating doctor has missed e.g. an acquired brain injury, say because of focus on other physical injury or illness, even if delayed diagnosis and management of a neurological disorder is not the primary basis for the client’s complaint.

This problem is so widespread that Headway have produced an invaluable resource for GPs, who might be the first clinician to whom a person with a brain injury presents. https://www.headway.org.uk/about-brain-injury/professionals/gps/resources-for-gps/

Of course, an acquired brain injury is not the only reason why a person’s cognition or mental capacity may be impaired, and physical and/or psychiatric injury or illness (or the pharmaceutical management of these) may cause or contribute to the picture. It is no surprise problems are missed and some people fall through the cracks given the current pressures on both acute and primary care.

Secondly, on a linked basis, if a problem has not been formally investigated or diagnosed it will not feature in clinical records and it is unlikely to be fully understood or appreciated by the client, if at all. It is also unlikely, through lack of insight or other factors, that relevant information will be volunteered by the client. Given the modern practice of taking instructions by telephone, questionnaire or other forms of remote communication, face-to-face contact is more limited than it used to be. Equally, we typically place initial reliance on desktop reports when considering breach of duty and causation in clinical negligence cases, and years may pass before in-person assessments for the purposes of condition and prognosis.

Where circumstances and funding permit, there is no substitute for face-to-face attendance with clients at an early stage. My caseload is exclusively made up of high value claims, and I consider it invaluable to have the luxury of this facility with each client I help. It is much easier to spot potential problems in this way, it gives a much better understanding of the client’s circumstances and, most importantly, improves their experience and participation.

If this facility does not exist, be mindful of the limitations of remote communication and employ strategies to guard against false assumptions. Some or all of the following may serve as useful ‘red flags’ in the course of client interactions, whether your contact is remote or face-to-face:

• Prior or supervening illness: traumatic or non-traumatic ABI (e.g. stroke and CP), LD, neurodivergence, mental illness, or progressive neurological conditions etc.
• Variable or delayed instructions.
• Constant need for reminder or reassurance.
• Perseveration or rigidity.
• Unwise actions, e.g. spending.
• Illogical, inconsistent or flawed decision-making.
• Behaviour or physical presentation (esp. changes).
• Refusal to follow advice.
• An inability to recognise or explain some or all of the above.

Mental capacity presents a trap for the unwary. Whilst it has been stated that “…the courts should always…investigate…” the issue of capacity at the earliest opportunity (see Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889), in reality responsibility rests firmly with the client’s adviser. Applications for the appointment of a litigation friend in good faith are unlikely to attract censure (see Folks v. Faizey [2006] EWCA Civ 38), but late recognition of capacity as a potential issue will not be as well received.

As mental capacity and the assumptions or evidence on which assessments have been based can change, make sure, on a timely basis, that the issue of litigation capacity is reviewed. This should certainly take place when any major decisions are made in the litigation process (for example, the commencement of proceedings or compromise of any issue), the nature of the litigation changes (remembering that litigation capacity is subject matter specific: see Dunhill v. Burgin [2014] UKSC 18) or at any time there is reason to believe that a previous assessment may be invalid (for example, if there has been a deterioration in the client’s health or a significant change in his or her engagement or presentation).

Instruction of experts

There are two main considerations when instructing an expert on capacity. Firstly, it is necessary to identify an expert with the requisite experience and expertise. A firm’s usual choice of psychologist or psychiatrist to assess an injured person may not be best placed to address the issues relevant when dealing with a complex mental capacity dispute. Consideration should be given to instructing an expert with specific experience of acquired brain injury or other relevant discipline.

Secondly, the expert must be familiar with the correct legal principles applicable to the assessment of capacity. It is imperative that experts are familiar with both the assessment of capacity in practice and the relevant statutory tests. Make sure that sufficient attention is paid to this issue when selecting experts and in preparation of the letter of instruction.

Absence of Litigation Capacity: some practicalities

It is not possible to give an exhaustive list of ways in which the absence of litigation capacity may impact on management or settlement of a case, but these are the common ones to be mindful of:

• Need for greater client explanation and information in support (with implications for budgeting resources, mindful of the PD1A changes regarding vulnerability).
• Need for the report of an IFA in appropriate cases [see IB v CB [2010] EWHC 3815 (QB)].
• Need for approval before judgment can be obtained on any partial admission and for the purpose of administering any interim payments.
• Need to consider anonymity and whether any application should be made prospectively on commencement of proceedings (i.e. is the case sufficiently sensitive that the issue cannot await consideration at the first CMC?).
• And, likewise, with Coles v Perfect type approvals [see CTQ v King’s College Hospital NHS Foundation Trust [2023] EWHC 2975 (KB)].
• Need to consider the information given to (or withheld from) some clients regarding the settlement sum, e.g. PSG Trust Corporation Limited v CK and Anor [2024] EWCOP 14.

Part 21 changes: recent and forthcoming

The Civil Procedure Rules Committee are part way through an exercise to simplify the Rules and consolidate the relevant parts of any Practice Direction, to avoid the need for two documents. This exercise was completed in respect of Part 21 in April 2023, including the importation of PD21, para 2.2(c) to CPR 21.5(6):

“Where the grounds for believing that a protected party lacks capacity to conduct the litigation are based on expert opinion, a copy of such opinion must be served, either with the certificate of suitability or separately.”

This advice was observed more in the breach as a Practice Direction, but is now mandatory (besides simplicity, this is one of the practical effects of including the text in the Rules, as Practice Directions have only ever been advisory).

There is also an important and very helpful change to PD16 11.1(3): “where [the defendant disputes any part of C’s served evidence and] the defendant has obtained their own medical report, attach it to the defence”.

These procedural changes underline the need to consider litigation capacity early (and discretely, as with the Court of Protection eg. in completion of a COP3). It is also good practice to assess, agree or resolve issues early with Defendants, avoiding reliance for limitation purposes on section 28, LA 1980: see e.g. Aderounmu v Colvin [2021] EWHC 2293 (QB).

We may be getting more guidance and substantive rule changes soon. The Civil Justice Council issued a Consultation in December 2023 on behalf of the ‘Procedure for Determining Mental Capacity in Civil Proceedings Working Group’. The Group is looking at identified shortcomings in the Rules in relation to the procedure for determining capacity to conduct proceedings and inconsistencies in practice between different civil disciplines. The Consultation closed on 17 March 2024, so watch this space. https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/cjc/current-work/procedure-for-determining-mental-capacity-in-civil-proceedings/

Pointers

• Never underestimate the significance of a finding on mental capacity (one way or the other) for the client and the litigation.
• There is no substitute for reading judicial determinations, e.g. Dunhill, Aderounmu and Loughlin v Singh & Ors [2013] EWHC 1641 (QB), to help your understanding of the Court’s likely approach to these questions.
• Be ever mindful that a loss of mental capacity:
• Can be the reason for or subject matter of the litigation (e.g. COP, ABI), but it may not.
• Can happen independently (a supervening event or progressive condition).
• Can occur prior to, during or after litigation.
• Is not entirely predictable or manageable, despite all care.
• Be suspicious.
• Investigate early and thoroughly.
• Obtain and scrutinise every potential document or piece of evidence.
• If in doubt, check (with colleagues, counsel and experts etc).
• Select experts carefully and scrutinise the evidence they provide.
• Do not expect to get things right all of the time, much less on your own; this can be a complex area, best approached as a team.

Matthew Stockwell
Exchange Chambers