Claims involving a mentally incapacitated claimant

Who lacks mental capacity?

The Mental Capacity Act 2005 (MCA 2005) sets out a specific test for deciding whether a person lacks mental capacity:

'a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance of, the mind'

When considering this test, MCA 2005 sets out five key principles which should be followed:

1. •

   a person must be assumed to have capacity unless it is established that they lack capacity

2. •

   a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success

3. •

   a person is not to be treated as unable to make a decision merely because they make an unwise decision

4. •

   an act done, or decision made, under MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in their best interests

5. •

   before the act is done, or the decision is