When you can’t handle a legal case on your own: understanding mental capacity and how the law can help
Suffering a brain injury can turn life upside down. It’s a lot to take in – managing daily life, treatment and recovery – so the thought of bringing a legal claim might feel overwhelming. But the law in England and Wales is designed to make sure you don’t have to face it all on your own.
In fact, if you’re not able to handle a legal case yourself, someone else – like a loved one – may be able to step in and help. This is where something called mental capacity becomes important.
What does ‘mental capacity’ mean?
Mental capacity is your ability to make decisions for yourself. We all make decisions every day – about money, housing, healthcare, or even just what to wear or eat. To make these choices, you need to be able to:
- Understand the information,
- Remember it long enough to think it through,
- Weigh up your options, and
- Communicate your decision.
When it comes to legal cases, there’s a specific kind of capacity the law looks at, called litigation capacity. This means whether someone can understand and manage what’s involved in a court case.
How does the law decide if someone has litigation capacity?
The Mental Capacity Act 2005, is the key law used in England and Wales. It sets out a few important rules:
- Assume a person has capacity unless there’s clear evidence they don’t.
- Give support to help someone make their own decision, if needed.
- Respect unwise decisions – just because a choice seems risky doesn’t mean someone lacks capacity.
- Only say someone lacks capacity if they can’t understand, remember, weigh up, or communicate information about the decision.
- Act in the person’s best interests if they can’t decide for themselves.
For legal cases, a person must be able to:
- Understand what the case is about,
- Make informed decisions about it,
- Understand advice from their legal team,
- Communicate with their lawyers, and
- Keep up with what’s happening during the case and in court.
If someone can’t do these things—even with help—they might not have the capacity to be directly involved.
What happens if someone can’t handle their case because of their brain injury?
Not everyone has litigation capacity, especially if they have certain health conditions, like a brain injury.
If it’s decided someone doesn’t have litigation capacity, the court will appoint a litigation friend. This is someone – often a trusted family member or friend – who makes decisions on their behalf during the case.
The litigation friend works closely with the legal team and must always act in the person’s best interests. They don’t make decisions for their own benefit – it’s all about protecting and supporting the person they represent.
Can someone’s capacity change?
Yes, definitely.
Mental capacity can change depending on someone’s condition, medication, stress levels, fatigue, or how complicated the decision is. Someone might not have capacity today, but that could change tomorrow or in a few months. The law recognises this – capacity isn’t ‘all or nothing’.
Why does this matter in a legal case?
Understanding whether someone has capacity is important because it protects their rights. It helps make sure:
- They’re included and heard – either directly or through a litigation friend,
- They’re treated fairly,
- The case outcome is valid and can’t be challenged later due to unfairness.
This part of the law is all about supporting people to stay involved, even when they’re vulnerable or facing difficulties, while respecting individual independence.
In short
- Litigation capacity is about whether someone can take part in their own legal case.
- If they can’t, a litigation friend will be appointed to support them.
- The law puts safeguards in place to protect vulnerable people, while ensuring they’re not excluded or forgotten.
- Capacity can change – and the law is flexible enough to reflect that.
How we can help
If you or a loved one has suffered a brain injury and are thinking about a legal case, you don’t have to worry – our team works every day with families who are dealing with these challenges.
We work closely with you to explain the options clearly and gather the evidence the court needs to decide about your or your loved one’s litigation capacity. We’ll support you in appointing a litigation friend if needed and work closely with the litigation friend to guide them through the legal process.
