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| James (0:09) | Welcome to another podcast from the HealthTech Research Centre in brain and spinal injury. You will have listened to countless episodes already and know how this works. I chat to interesting people and we have a conversation and find out some stuff that we didn't know before.
And after brain injury it's not uncommon for people to have cognitive issues, memory and recall and they might have disinhibition, they might have a problem with executive function and planning and stuff like that. And that means that sometimes making decisions about their lives might be a bit kind of difficult. Sometimes this gets us into issues about mental capacity and I thought who better to talk to us about that than to get a lawyer on the call. So I'm joined by Kate Edwards and Kate is the Director of the Court of Protection at Fletcher's Solicitors up in Manchester. Hi Kate. |
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| Kate (0:55) | Hi James, really nice to see you today. | |
| James (0:58) | So maybe we can start off by just what do we mean by capacity? What does that word actually mean in the real world? | |
| Kate (1:06) | Wow, that's quite a big question actually. Capacity in legal terms is looking at whether somebody has the ability to make a particular decision for themselves and conversely whether or not they might need some support around making that decision. | |
| James (1:26) | Okay and what kinds of decisions are we talking about? Presumably it's not what am I going to have for breakfast today? You know, a step up from that kind of thing. | |
| Kate (1:35) | There are lots of different areas where you might have, where you might be looking at decision-making capacity. My particular specialism is supporting people who are judged to lack capacity to manage some aspects of their property and affairs in the legal terminology, finances for us everyday folk. So that's the area I particularly specialise in but there's lots of other areas where capacity might need to be looked into, have a think about how to approach it for a particular person.
There's, and I work closely with people who deal with issues that arise around the capacity to consent to sex, the capacity to decide where you live, the capacity to decide what care or medical treatment you might receive. Even sometimes I've worked with people at specific capacity assessments around ability to access the internet and how to interact with people there. There's a lot of different specific subject areas where different legal rules apply. |
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| James (2:43) | Okay yes, so I mean some of the things you've described there, it's kind of obvious where someone who's perhaps a bit kind of vulnerable could be exploited by somebody else or they might just make a decision which isn't going to be in their long-term best interest. You know, I'm going to sell my house and travel the world for a year, that would be amazing. What are you going to do when you get back?
And we know that that long-term planning is something that sometimes people with brain injury might struggle with. |
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| Kate (3:07) | Yeah that's right and when you're coming, when somebody assesses capacity and that is done by doctors, not lawyers by and large. There are other people who are able to assess capacity legally but by and large it's done by doctors or people medically qualified and there's a range of information that they need to know to be able to assess whether the individual that they're assessing does or doesn't have capacity. And what that information is, like you say, the long-term implications of the decision, the whole circumstance of somebody's life particularly in financial terms, like you wanting to sell the house and buy a yacht and sail around the world, what happens when you come back?
Well it might be a lovely idea and you have to weigh that up with what else they've got going on in their life and it may sound terrible but how long is that life going to be and what does it mean, what's meaning in life as well? It can raise some of the really big issues about what people value and what's known in the legal terms in the Mental Capacity Act, the wishes, feelings and beliefs aspect comes into play as well around making best interests decisions. |
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| James (4:17) | So who would raise a case, so there's somebody and they decide let's take that example, they're going to sell the house and go off and jet around the world, is it a relative of theirs who might say “not sure that's such a wise idea” and push for this kind of capacity assessment or would it be maybe there's a lawyer involved who's handling like an insurance payout or something like that, where does it come from? | |
| Kate (4:39) | It arises in different situations for example it like sometimes it's concerned family members so we'll work perhaps with somebody, you might be concerned about an elderly relative being taken advantage of and you know a concerned family member might say oh I'm not so I'm not so sure that they should be dealing with all this without some support now. Sometimes it arises from a social services interaction, a crisis in care might lead to questions around can you deal with your finances but also those other questions I mentioned are you are you living in the right place, are you getting the right support to access the community, you know are you living well. Gives rise to those questions and local authorities have obligations, safeguarding obligations support obligations, so it often arises in a social care context. It can arise in a hospital context as well where people are seeking medical treatment or where the medical staff think that a certain course of treatment is advised and somebody doesn't want to accept that advice, there might be concerns around whether they're really understanding what their refusal of the suggested treatment might mean for their health and their well-being.
So it arises in a range of different arenas. I was even thinking there's a case I've been involved with where a bank raised concerns because a lady was on the phone telling them that she wanted to transfer a large amount of money and the bank actually raised, I'm not entirely sure of the mechanism but they were one of the organisations that raised a concern about her because they could clearly hear the voice of somebody else in the background coaching her on what to say in the phone call. So there's lots of different people, agencies, circumstances where somebody might put their hand up and say “I'm not so sure here.” |
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| James (6:43) | And how would they do that right if someone's listening to this call and a bit worried that their granny is being kind of manipulated by somebody else and but they're making decisions because it's their money and it's their bank account and stuff. How would you do it? Do I ring you up Kate and say I'm a bit worried about this?
Is there a route to raise concerns about capacity? |
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| Kate (7:04) | Some people do that, it very much depends on what sort of thing you're dealing with. The local authority is often a really good first point of contact, social services. They do an awful lot with a little resource.
They're always very dedicated people and they will know where to turn. There are some charities that support people in these circumstances if they're not sure which way to go. It very much depends and sometimes if you're worried about a relative who might been taken advantage of, sometimes speak to them and say are you sure about this? Sometimes people don't know how to reach out for help. You know particularly with older relatives they might feel they don't want to be a burden and they're not sure how to say I'm actually a little bit lost in this world now and I'd like somebody to help me through it. The other thing is accessing and providing that support I believe can be quite, doesn't have to be a negative experience as well. |
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| James (8:07) | Yeah so I mean we've been sort of talking I guess and giving kind of some examples of things where it's kind of quite clear that somebody's at risk of being exploited or making a bad decision but that person might disagree. I might want to sell my house and sail around the world because I've only got 10 years left to live and blow it. Do you know what I mean?
So presumably there are times where there's some kind of argument. Well you know the doctors might say actually we don't think you have capacity to make this decision. You're doing something that's ill-advised and not right but the person says no that's what I want to do. That's my wishes and beliefs, the things that you were just mentioning. So what happens if there is that sort of disagreement? |
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| Kate (8:45) | If there is a disagreement about capacity it could end up that the issues need to go before the Court of Protection which is a specialist court that has the jurisdiction to make decisions for people who lack capacity to make those decisions for themselves and it's fairly common within the Court of Protection for there to be disagreements about people's capacity to make or not make decisions for themselves and it's the judges in the Court of Protection who have to consider all the evidence and decide well on balance I think they can make this decision but not that decision or they need this sort of support to then allow them to have the capacity to make that kind of decision. | |
| James (9:29) | And is that a sort of case-by-case literally a hearing for each decision that they might want to make? | |
| Kate (9:35) | In some cases it can be yes it can be, there can be very long complicated sets of hearings around people because it often goes to the most important decisions in people's lives you know where do you live that's a huge you know that's a huge part of your life do you have you know an operation for example they're really big decisions and I think it's absolutely right that society affords the time and the space to really explore those issues for people and make sure that to the best of everybody's abilities that we're getting it right. | |
| James (10:12) | Yeah and you know they're decisions that really kind of define who you are right your identity is where you live and the things you do and the people you mix with and you engage with and and actually after brain injury recovering that new identity is really difficult that's what rehabilitation is about right who am I now because I'm probably not the same person as I was before so we need to get that balance between giving people the freedom to do that to express themselves and be the new them but also I guess kind of having this protection that they're not going to do something which is really detrimental in the long term. | |
| Kate (10:46) | Definitely and I think part of my role because I often work alongside litigators and people who've suffered a brain injury and they're on a rehab journey as well as making a claim for compensation and I've learnt a lot from working with people over the course of really extended time periods more than a decade in many cases and seeing their rehab journey and seeing them re-establish who they are as who they are as people and what it means to be almost a new person you know you can't be the person you were before because you've had this significant experience but how does the person you were before inform the person you are now and the person you want to be in the future and exploring those capabilities and that's the rehab journey is a really interesting part of the work. | |
| James (11:42) | Yeah and that journey is full of decisions that shape who you're gonna be and I guess the other thing that's really important to get out is that people make stupid decisions all the time right you know people have sex with the wrong people all the time people spend money on stupid things all the time people smoke and drink too much all the time and we don't have a court that comes in says maybe you shouldn't be doing that I'm gonna make that decision for you and put that fag down so where do we draw the line you're talking about doctors kind of making that assessment what sort of criteria are people using? | |
| Kate (12:14) | Now if somebody if somebody is judged to lack capacity and to make a particular decision yeah one of the questions that the court will ask is how are you going to how are you going to stop them doing that if they really want to do it you have to the Court of Protection has to think practically because it's all well and good a judge making a decision but how's that going to be to be carried out in real life and and you're right the other thing is people people are always people you know whether they have a brain injury or not and they're going to do normal everyday people things and it's striking that balance. There's often a debate within the Court of Protection and people like myself who work in in and around it about you know there's that tension in the name it's protection but protection from what and should it should it more rightly be called the Court of Empowerment because where do those two concepts interact with each other are you what you're protecting people from and what you're empowering them to do is always there in the tension with that kind of decision-making. | |
| James (13:28) | yeah really difficult idea. We're both parents right and we know that our kids have and will make stupid decisions as they grow up right and you want to protect them and don't do that but you have to let them go out you have to let them make mistakes and make stupid decisions because that's how we learn and how we kind of become who we are I guess and I suppose the difference is that we know that there are physical changes in the brain in people after a brain injury we know that their executive function might be impaired if they've got damage to the frontal lobe for example so it's more likely that they'll make very rash decisions without having thought properly about the consequences because they can't plan that part of the brain function has kind of gone but it must be really difficult for the doctors to make that kind of assessment because we know also outcome after brain injury is enormously different we can have two people with something that looks the same on the scan but their behaviour is quite different | |
| Kate (14:21) | eah I think that comes with working alongside people so when I'm making a decision as a deputy it's really important that I I have to be to the best of my ability conscious of taking myself out of the decision-making so just try and look at the facts and work through things and support people to take part in the decision-making even if there's been a judgement that they can't take the decision themselves they work with me as the legally substituted decision-maker but I also find capacities not a fixed point at all some people's capacity will fluctuate slowly over time on that rehab journey you're getting better and people relearn you were saying about the organic changes to the brain but the brain is a resilient and quite magical thing and I've read report you'll read reports of somebody and think they're not that person anymore decades later you'll come back and go well you said that you know she would never live independently and she's living independently and I know because I've been out to a house and got a cup of tea with her. People do relearn and that I think there's always hope for change as well so yeah people will make silly decisions and they'll still learn from them like a teenager you know the things you do at 16 your parents might go “Oh dear they're going to learn from that” and people will still you know and can be reasoned with it's not like all reason is gone and like say no two brain injuries are the same no two recoveries are the same so there's always something for me as a professional to learn from the people I work with as well | |
| James (16:09) | yeah and we know that there's enormous fluctuation. One of the huge problems of people applying for benefits after brain injury is that he's quite different from day to day hour to hour and your kind of function that now be another podcast in the future Watch this space. You mentioned the word deputy then so what we're saying is that if somebody is deemed not to have capacity to make a decision then somebody makes that decision for them I guess there's times where that is the same decision that they want to make | |
| Kate (16:41) | in the first place oh yeah a lot of the time sometimes we're doing kind of boring stuff in the background when you're a deputy for sort of property and affairs deputy managing people's finances it's pretty uncontroversial that the rent has got to get paid and the gas bills got to get paid and the benefits have got to get claimed that that side of things it is rarely you know too interesting because people know it needs to get done everybody's in support of it people want it to get sorted out and that progresses quite nicely. It's the more it's the nice to have the fun bits of life where people have different ideas of fun some people want to sail around the world in a yacht. We had a controversy not so long ago about the desire to buy a Lamborghini out of settlement funds I'm not a car person but there are car people people come to you with you know when people raise stuff and you think oh sometimes your initial thought because I'm also a person too. Thinking oh I wouldn't do that with the money and then you've kind of got to take yourself out of it and go but would they is it is it sustainable do they need that money to pay for their care do they need that money to support their kids or like you say people you know have a bit of fun life needs a bit of fun | |
| James (17:59) | yeah yeah and we don't want to deprive people of those opportunities especially when they've had this life-changing experience and change your perspective on things. So you talked about settlements we know that that's quite common after things like brain injury someone was deemed to be at fault and there'll be some kind of insurance settlement for that but in some cases there isn't any money how does it work then so I haven't got any money to pay for your time but I am deemed not to have capacity who you who pays you okay where does the funding come from for those things is it kind of through that court of protection that you talked about earlier on. | |
| Kate (18:31) | No the funding for deputy for the vast majority of the people who I work with does come from compensation claims but that's because I'm a professional deputy you don't have to be a professional to be a deputy there are thousands of really good family members who are what's known as a lay deputy who tirelessly do this job for a loved one or a friend without being paid. Sometimes it's as easy or as hard as you want to make it we all know how to manage our personal finances and that's all you really have to be able to do is you know be a little bit resilient in the face of some paperwork and you can step in and support a family member by being their deputy | |
| James (19:19) | yeah and is that person sort of appointed by the court so they have some status you know to kind of look after people's affairs for them | |
| Kate (19:24) | yes yes so some people might be familiar with powers of attorney so if you've entered into a lasting power of attorney you are all good so if you get a knock on the head you're all good in future you've got your lasting power of attorney and your attorney picks up and can help with the decision-making if you've not done that that's when the court protection will need to appoint a deputy. But they only do it if there's evidence that you you're going to need somebody to support you with decision-making in the longer term. So it's not usually done in the short term in the immediate aftermath of an injury people are in hospital in the future is very uncertain and people's you know yourself people's recoveries can be very rapid or they can be very slow or they can go forwards and go backwards so while there's that uncertainty around the prognosis most doctors tend to be a bit reluctant to sign the legal paperwork to say this person's going to need a deputy so it might take a few months or so start getting a bit of a clearer idea and then you might say actually I think this is it's going to last for the foreseeable future it doesn't have to be forever either that's something else I think is er | |
| James (20:43) | yeah that's why I was gonna ask you just to come a point where you can say you know actually I don't need a deputy anymore and there's assessment that says that person actually might not necessarily be making the right decisions don't share their wishes and beliefs you know they've got an idea of where their child who's been injured ought to be going and but actually you need to kind of cut those ribbons a bit. | |
| Kate (21:03) | That's it lawfully you don't need a deputy forever a deputy isn't forever and one of the duties when you are a deputy whether a professional like me or whether you're a lay deputy doing it for a family member. One of your duties is to think about whether you're still needed and if you think that perhaps the person you're deputy for has made enough of a recovery that they can that you can be discharged and they can take over all their decisions it's your job to then go and find you know ask another doctor to do a new capacity assessment to find out if they do or don't still need a deputy and people do get discharged from the Court of Protection because like everything else a recovery can be made, people can relearn and while it's not hugely common it's always really great I actually really enjoy it when people I feel I've always I like to feel that I've played a part in helping | |
| James (22:02) | yeah that's a win isn't it that's what we want isn't it and I guess there's a risk that you actually slow people's recovery by making decisions for them and don't let them do stuff I remember when I first went back to work. It was really difficult but I needed to do that I could have just sat at home and not done anything and not made the effort and pushed myself to do it but I think I needed. if I hadn't done that I'd still be sitting home not doing anything 15 years later right because you need to stretch out and push yourself a bit. | |
| Kate (22:36) | Yeah yeah definitely and you know again people with the compensation claims will have they'll have the money to help get to that place more rapidly so they'll have the case managers and they'll have the occupational therapists and the speech and language therapists to help you know get over the barriers that might be between them and improvements in their capacity around communication and cognition and organisation. So if you've got that support around you people can relearn how to prioritise and you know how to if executive function is impaired for example there's lots of techniques I've discovered people can employ over the years to substitute for your brain doing executive function for you and we all we actually all use them. | |
| James (23:33) | yeah absolutely and we've been talking on these podcasts about a whole bunch of innovations that work in that kind of space that can support memory and planning and goal-setting and all those kind of things to kind of help you through. So okay if people want to find out more about this thing and about the court protection in particular they could do worse than read your book couldn't they so I'm going to let you do a shameless plug a book at this point | |
| Kate (23:52) | A shameless plug yes I am one of the co-authors of the Courst of Protection Handbook a Aser's Guide which I write along with my lovely co-authors and we are edited by a barrister called Alex Ruck keen and it was recently updated in 2025 it's a legal book but it's written to be an accessible legal book so if you do need to apply for deputyship for a family member it should give you everything you need to know for finances and for health and welfare lots of other good stuff in there about how to make applications how to respond to applications. | |
| James (24:37) | Cool very useful resource. I will put a link to the website dealing with that handbook and share it. and on that note I will say thanks ever so much Kate for taking the time to have a chat with us on the podcast today it's been really nice to find out a bit more about these issues around capacity. | |
| Kate (24:53) | oh you're more than welcome it's been really nice talking with James
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| James (24:57) | Thanks and if you've enjoyed this podcast do check out the other many many episodes available through your podcast supplier. I want to say supplier I'm not sure that's the right word but you know where to look. Find your podcast have a listen to all the other episodes and look out for new ones in the future thanks very much |
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