A Guide to Mental Capacity for Clinical Negligence Lawyers

Introduction

Mental capacity is an area which must be taken seriously, because the result of finding someone mentally incapable of conducting litigation for themselves is essentially a deprivation of their liberty - so that decision-making process must be given the weight it deserves.

Capacity is complex and can be fluid. How often should you reconsider the position during the lifetime of a case? How should you assess it?

This virtual classroom seminar will consider the physical limitations which can have an impact on someone’s capacity to give instructions or take advice - such as hearing and vision impairment - and the importance of not making a disability into an incapacity simply because of practical difficulties that disability may present.

The importance of utilising your private client department will also be considered, if you have one, in terms of advice and mechanisms for protecting vulnerable clients.

What You Will Learn

This live and interactive session will cover the following:

• Initial instructions - how do you assess whether your client has capacity? Can you take their word for it? The word of a family member, a friend, a medic? A decision that someone lacks capacity is a serious one - made erroneously, it could arguably constitute a serious infringement of someone’s civil liberties. It therefore must be considered thoroughly. You should also consider whether an independent expert opinion should be obtained
• Does an LPA/EPA automatically allow you to assume the subject lacks mental capacity?
• What about intermittent lucidity/capacity?
• What about ‘capacity to litigate’? How does this differ from capacity generally?
• What impact does mental incapacity have on limitation?
• What impact does mental incapacity have on damages payments?
• What are the practicalities associated with representing someone under a mental incapacity?

Recording of live sessions: Soon after the Learn Live session has taken place you will be able to go back and access the recording - should you wish to revisit the material discussed.