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Traumatic head and brain injuries can have a devastating effect on your or a loved one’s life. Every aspect of your life can be impacted – you can be left mentally impaired or even in a permanent vegetative state. As brain injury specialist solicitors, we regularly witness the devastating consequences a severe brain injury can have on the victim and their loved ones.

Besides physical and mental issues, families are often faced with complicated legal issues when a brain injury significantly impairs a loved one’s ability to make their own decisions.

What is a brain injury?

The main types of brain injuries we deal with are traumatic brain injuries and acquired brain injuries.

• Traumatic Brain Injuries refer to brain injuries caused by an external event, such as head trauma due to a road traffic accident, falls or assault. Symptoms can appear immediately or days or weeks after the incident.

Traumatic brain injuries include:

• Closed head injuries, for example, impact to the skull or a sudden jerk or rotation of the head in a road traffic accident.

• Open head injuries include a stab wound or other penetrating wounds that fracture the skull and expose the brain.

• Acquired Brain Injuries refer to any brain injury caused after birth. It can include traumatic brain injuries. Typically, it relates to injuries due to swelling in the brain, brain tumours, aneurysms, encephalitis, or a stroke.

Hypoxic and Anoxic Brain Injuries

Hypoxic and anoxic are terms that brain injury specialist solicitors often come across when dealing with brain injury compensation claims.

• An anoxic brain injury occurs when there’s a complete interruption of oxygen to the brain.

• Hypoxic injuries can happen when the oxygen level isn’t enough to maintain normal brain function.

Brain injuries vary in severity and range from a mild concussion to a moderate injury lasting for a few hours to a few months, to severe brain injury that can impact a person’s mental capacity.

If the brain injury is so severe that it becomes necessary to make decisions on behalf of the person, the legal issues around mental capacity become complex.

Mental Capacity

The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make decisions about their financial affairs, property, health, and personal welfare.

It covers decisions about day-to-day things like what to wear or buy for the weekly shop, to serious life-changing decisions such as whether to move into a care home, get married, have major surgery, or receive life-sustaining treatment.

When assessing a person’s mental capacity, the MCA defines a person who lacks capacity as follows:

“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 a disturbance in the functioning of, the mind or brain.”

“It does not matter whether the impairment or disturbance is permanent or temporary.”

It is important to remember that a person can lack the capacity to make certain decisions (for example, to get married) but might still have the capacity to make other decisions (like buying milk and bread at the local shop)

How does the court assess mental capacity?

The MCA sets out a 2-stage test to assess a person’s decision-making ability.

1. The diagnostic test:

Does the person have an impairment of, or a disturbance, in the function of the brain or mind?

In accessing this question, the court will ask:

• What is the nature of the impairment?
• Is there a formal diagnosis?
• Is it a constant or a variable disturbance or impairment?
• Is it permanent?

2. The functional test: Does the impairment mean the person lacks the capacity to make a decision on a specific matter at the time when they need to make that decision?

Questions to consider:

• Does the person understand the relevant information needed to make the specific decision?
• Can the person retain the information long enough to make a decision?
• Can the person “assess” the information to make a valid decision?
• Can the person somehow communicate their decision?

Principle to apply when assessing mental capacity after a brain injury

Deciding that a person lacks the ability to decide for themselves is not something the courts will do lightly. The MCA sets out five guiding principles that must be applied.

1. There is a presumption of capacity, meaning a person has capacity until proven otherwise. The burden of proof is on a balance of probabilities that the person lacks the capacity to make a particular decision at the time it needs to be made.

In practice, this means that:

• Anyone disputing mental capacity must provide evidence to prove the lack of capacity.
• Mere age, appearance, behaviour, or condition is insufficient to prove a lack of capacity.
• A lack of capacity to make one decision does not necessarily mean a lack of capacity to make other decisions.
• Some people just need help communicating their decisions – it does not mean they can’t make the decisions.

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 – the person should be given all the appropriate help and support to enable them to make their own decisions.

3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision. The focus is more on HOW a person makes a decision than the decision itself.

4. Decisions made on behalf of someone who lacks capacity must be made in their best interests.

5. Consideration should always be given to the least restrictive way of achieving the desired outcome. The Act aims to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling.

What decisions can be made for a family member with a brain injury?

• The Court of Protection can decide whether a person lacks the capacity to decide for themselves.

This can happen when it is uncertain whether the person has the capacity to make decisions or a dispute about what is in the person’s best interest cannot be resolved.

• If a person cannot make their own decisions, the court can make decisions for them about their financial affairs, property, health, or personal welfare.

This includes:

Personal welfare and health decisions such as:

• Deciding where a person lives.
• Making an order prohibiting someone from having contact with the person.
• A decision for medical treatment.
• Making a declaration as to whether an advance decision exists or is valid.
• Decisions around life-sustaining treatment.
• Termination of pregnancy.
• Decisions about medical procedures for the purpose of organ donation to another person.
• An experimental or innovative treatment for the benefit of the person.

Property and affairs decisions such as:

• Protecting the person from undue pressure to do something the person does not want to do, for example, changing a will.
• The sale, exchange, charging, gift, or other disposition of the person’s property.
• The carrying out of any contract entered into by the person.
• The execution of a will for the person.
• If a series of decisions are required, the court can appoint a deputy to make decisions on behalf of the person.

Ultimately, the law aims to protect people who lack capacity and, if possible, to help them make decisions that affect them.

Decisions that can never be made for a person who lacks capacity

The MCA stipulates certain decisions that cannot be made (not even by the Court of Protection) on behalf of a person who lacks capacity.

These decisions include consenting to any of the following:

• marriage or a civil partnership;
• to have sexual relations;
• a decree of divorce being granted on the basis of two years’ separation;
• a dissolution order being made about a civil partnership based on two years’ separation;
• a child being placed for adoption by an adoption agency;
• the making of an adoption order; and
• giving consent under the Human Fertilisation and Embryology Act.

Does this mean that a person lacking mental capacity can never get married?

When someone does not have the capacity to decide to get married or have a sexual relationship, they cannot consent to either. And no one can give consent on their behalf.

However, suppose there is doubt about whether the person has the capacity to consent to marriage. In that case, the court can do an assessment.

The court will evaluate the following:

• Does the person understand:
– The nature of a marriage contract?
– The rights and obligations involved in a marriage?
– That any existing will is invalid after the marriage?

• The person must not be under any undue influence or duress.
• They must not lack the capacity to engage in sexual relations.
• Can the person communicate their decisions?

When applying the principles of the Act, the court will consider the following:

• Is the decision in the best interest of the person?
• Did the person get practical help to assist in making their decision?
• Just because it is an unwise decision doesn’t mean the person lacks the capacity to decide whether to get married or not.

The court will presume the person has the capacity to consent to marriage unless the contrary is proven on a balance of probabilities.

What about engaging in sexual relations?

Although the court cannot consent to sexual relations on behalf of a person who lacks capacity, the person cannot be deprived of the right to make that decision for themselves.

The purpose of the law is to protect people from harm and empower them to make their own decisions. The courts have indicated there should not be a higher standard for the required capacity of a person with a mental impairment when deciding whether to have sex.

The court should apply the same MCA tests and principles when determining whether a person can decide to engage in sexual relations, the same as any other decision.
Again, an unwise decision does not mean the person lacks the capacity to make a valid decision.

It is about HOW the decision is made.

Conclusion

If a loved one has an acquired or traumatic brain injury impairing their mental ability or you have reason to doubt their mental capacity, you should seek advice from a specialist brain injury solicitor.

Deciding whether they can or can’t make their own decisions and the consequences of making decisions for them can be tricky. An experienced brain injury solicitor can help you navigate this complex area of the law and protect your loved one’s rights.