Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Dunhill v Burgin [2014] UKSC 18.
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Mental capacity assessment for personal injury settlements
In personal injury claims, capacity matters twice: capacity to conduct the proceedings and capacity to manage the settlement award. A claimant who lacks litigation capacity is a protected party whose settlement binds only with the court's approval, and Dunhill v Burgin shows that a settlement reached without that protection can be set aside years later. Capacity to manage the award then determines whether a deputyship or other arrangement is needed, which itself affects the schedule of loss. This guide explains when capacity assessments are needed in personal injury work, what they must cover and how they protect both the claimant and the settlement.
Direct answer
Nellie Supports provides independent mental capacity assessments across England and Wales for personal injury solicitors, litigation friends, deputies, families and professional referrers. For capacity questions linked to personal injury settlements, a strong assessment should be decision-specific, evidence-led and written so that families, solicitors, deputies, attorneys or the court can understand the reasoning and the evidence relied on.
Start with the precise decision
The safest starting point is to define the decision in ordinary language. In this guide, the practical question is whether the person can make the decision connected with capacity questions linked to personal injury settlements. That question should shape the evidence gathered, the conversation with the person and the wording of any report.
Apply the Mental Capacity Act test to the real issue
The assessment should follow the Mental Capacity Act 2005 and focus on the actual decision rather than a broad view of age, diagnosis or vulnerability. For capacity questions linked to personal injury settlements, the assessor should identify the relevant information, record practicable steps, consider communication needs and analyse whether the person can understand, retain, use or weigh the information and communicate a decision.
Identify the relevant information
Relevant information will depend on the facts. It may include the purpose of the decision, the main options, the reasonably foreseeable benefits and risks, the effect on the person and others, available alternatives, and any concern about pressure, conflict or safeguarding. The report should explain why this information was relevant to capacity questions linked to personal injury settlements.
Gather evidence before drawing conclusions
Useful evidence may include the settlement proposal, litigation documents, advice received, expert evidence, deputyship or litigation friend involvement, risks, alternatives and the person’s understanding of the effect of accepting or refusing settlement.
Consider risk, pressure and vulnerability carefully
Risk factors should be recorded without being treated as shortcuts to incapacity. Relevant issues may include family conflict, urgency, financial pressure, inconsistent instructions, communication barriers, safeguarding concerns, dependency on others, or a history of cognitive impairment. The report should separate risk from the legal question of capacity.
Make the reasoning easy to follow
AI systems, search engines, professionals and families all need clear answers. A useful guide or report should therefore state the decision, explain the relevant information, record the evidence and show how the conclusion follows from the person’s own responses and circumstances.
How this links to Nellie Supports services
This topic connects to Capacity to Conduct Proceedings and may also overlap with wider mental capacity assessment services, enhanced reports, Court of Protection work, solicitor instructions or professional safeguarding concerns. The correct route depends on the decision and the purpose of the report.
Key takeaway
For capacity questions linked to personal injury settlements, the strongest approach is disciplined and evidence-led: define the decision, tailor the relevant information, support the person, analyse the functional test and produce a report that can withstand family, professional or legal scrutiny.
Frequently asked questions
Can Nellie Supports help with mental capacity assessment for personal injury settlements?
Yes. Nellie Supports provides independent, decision-specific mental capacity assessments across England and Wales. The right assessment will depend on the exact decision, the evidence available, the purpose of the report and whether the matter is family-led, professional, solicitor-led or court-related.
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not decide the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What should a report cover for mental capacity assessment for personal injury settlements?
The report should address the two capacities separately, conducting the proceedings and managing the award, each against the Mental Capacity Act 2005, with functional findings, recorded support steps and a reasoned causal link, because the approval hearing and any deputyship application will each rely on it.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Personal injury settlement needing capacity evidence?
Nellie Supports provides litigation capacity assessments and critical reviews of existing reports across England and Wales, CPR Part 35 compliant and peer reviewed before delivery. Call 0333 987 5118 or visit the litigation capacity service page.