When a Client Cannot Give Instructions: Capacity, Consent and the Court's Role in Serious Injury Claims

Every personal injury claim is built on a simple foundation: the client decides, and the solicitor acts on those decisions. When a serious injury affects memory, reasoning or communication, that foundation has to be rebuilt in a different way. The UK system has a settled answer to the problem, and it is designed to protect the injured person rather than to hand control to anyone else.

Families encountering these arrangements often describe them as opaque. In practice they consist of three elements that fit together: an assessment of capacity, the appointment of someone to act in the person's place for the purposes of the claim, and, in many cases, a judge's approval before money changes hands.

What capacity means in a claim

The Mental Capacity Act 2005 starts from a presumption: every adult is assumed to have capacity unless there is reason to believe otherwise. Capacity is not a general label attached to a person. It is decision-specific and time-specific. Someone may be unable to manage a bank account yet perfectly able to say whether they want to pursue a claim; someone may be able to make decisions in the morning and not in the afternoon.

The statutory test has two limbs. First, is there an impairment of, or disturbance in the functioning of, the mind or brain? Second, does that impairment mean the person cannot understand the relevant information, retain it, weigh it in reaching a decision, or communicate that decision? In litigation the relevant decision is whether to bring, defend, compromise or continue proceedings. Solicitors are expected to consider this question rather than assume an answer, and complex cases usually involve a neuropsychologist or psychiatrist instructed to report on it.

The litigation friend: standing in the client's place

The Civil Procedure Rules provide that a person who lacks capacity to conduct proceedings — described as a protected party — must act through a litigation friend. The friend makes the procedural decisions the client would otherwise make: instructing the solicitor, approving expert evidence, and giving authority to settle.

A friend is most often a partner, parent or adult child, though a professional may be appointed where family circumstances make that preferable. The role is unpaid for family members, and it carries a specific duty: to act fairly and competently and in the protected party's best interests. That is not always the same as acting on the family's preferences, and the court can remove a friend who is unable to keep the two apart. Where a conflict of interest exists — for example, where the friend may benefit under a will — the point should be raised at the outset.

Where the Court of Protection fits

Capacity to conduct litigation and capacity to manage property and finances are separate questions. The Court of Protection deals with the second. Where someone cannot manage money, the court can appoint a deputy, whose powers are set out in an order and who is supervised by the Office of the Public Guardian. Deputies may be family members or professional deputies such as solicitors or panel deputies.

Deputyship brings obligations: a security bond, annual reports and, in larger estates, professional investment advice. It also answers the practical question of who will receive and hold damages once a claim concludes. Where the injured person made a lasting power of attorney covering property and financial affairs before the injury, the registered attorney may be able to act instead, which is one reason families are encouraged to consider lasting powers of attorney while capacity is intact.

Why some settlements need a judge's approval

Where a claim is compromised by or on behalf of a protected party, the rules require the approval of the court. The same applies to claimants under eighteen. The purpose is straightforward: to ensure that the sum agreed genuinely reflects the claim, including future care, lost earnings and the cost of adaptations that may not yet have been commissioned.

At an approval hearing a judge considers counsel's advice, the medical evidence and the breakdown of the proposed award, and may question whether particular heads of loss have been adequately provided for. Settlements structured as periodical payments receive particular scrutiny. Approval is not a formality, and it is not a judgment on the family; it is a safeguard that prevents an unwise compromise binding someone who could not have authorised it.

What families should expect in practice

The sequence usually runs as follows. Capacity is assessed early, often by experts instructed in the claim itself. A litigation friend is appointed, either by agreement or by court order, and signs a certificate confirming suitability. If financial decisions require ongoing support, an application is made to the Court of Protection, which takes several months and involves statements from the person, the proposed deputy and often a medical practitioner. When terms are agreed, an approval hearing follows, sometimes by video link, and funds are then released to the deputy or into a trust.

Who pays for these safeguards

The costs of a professional deputy are normally met from the protected party's funds, subject to the court's approval, while a family deputy acts without charge. The costs of the litigation friend are usually recoverable within the claim, and the costs of the approval process are treated as part of the proceedings. Funding of the claim itself is unaffected: conditional fee agreements, after-the-event insurance and legal expenses insurance operate in the ordinary way, and where money is held in a personal injury trust, means-tested benefits may be preserved.

Points to raise with the solicitor early

• Has capacity to litigate been formally assessed, and by whom?
• Is a litigation friend required, and who is proposed for the role?
• Is a deputyship application needed, and how long is it likely to take?
• Will the settlement require court approval, and what will that involve?
• How will the damages be held once received?

These arrangements add steps and time, and families are entitled to have each of them explained in writing. Understanding them early removes much of the uncertainty that otherwise surrounds an already difficult period.