The claimant L suffered serious brain injuries as a result of a road traffic collision caused by W. L was married at the time of the collision to an Australian national who returned to live in Australia with their son four years after the collision but before the determination of the litigation. L planned to join them once the case was settled. The defendant’s insurers admitted liability in full and the issue of quantum was decided in a separate hearing. This case concerned the issue of whether the claimant had the capacity to conduct the litigation and the separate issue of whether he had the capacity to manage the substantial sum that would be awarded in damages. The court was required to decide whether L was a patient within the meaning of part 7 of the Mental Health Act 1983 and CPR Part 21. The onus of proving that a person is a patient is on the one who asserts it. L neither sought a finding that he was or was not a patient and thus left it to the court to determine this issue with the assistance of the Official Solicitor.
A person is a patient where “after considering medical evidence the judge is satisfied that a person is incapable by reason of mental disorder of managing and administering his property and affairs.” (Part 7 of the MHA and CPR Part 21.1 (2)) It was not disputed that L had a mental disorder. In relation to capacity, everyone is presumed to have capacity and it is for the person alleging incapacity to establish it. The assessment of capacity must be done on a transactional basis having regard to the transaction in question. The more complex the transaction, the greater degree of capacity that is required. Masterman-Lister v Brutton & Co (Nos 1 and 2) applied. The court should only take over decision-making for the individual when it can be shown on the balance of probabilities that the “person does not have the capacity to understand, absorb and retain information relevant to the matters in question sufficiently to enable him to make decisions based upon such information.” In re Beaney deceased followed.
Counsel for the Official Solicitor submitted to the court that it should also have regard to the complexity of the decisions under consideration by L and “not its own valuation of the gravity of those decisions because it was not for the court in non-medical treatment cases to decide what was or was not serious in the life of the person before it.” In her witness statement, L’s wife provided cogent evidence of her husband’s lack of motivation, distractibility, irritability, lack of judgment, disinhibition and poor recollection. He needed constant prompting to complete basic tasks of self care and other activities such as leaving the house and going shopping. Whilst out shopping he wanted to buy everything without any thought to the cost or budget. He was easily distracted and unable to manage finances unless in a structured setting free from distractions where he might listen and take advice in relation to his financial affairs.
The court heard opinions from medical practitioners. Dr S concluded that L did not have sufficient mental capacity and analytical skills to understand absorb and retain information such as advice he may receive sufficiently to make decisions based upon such information and advice. Dr N, a consultant psychiatrist retained by the defendant’s insurers, disagreed and felt that L did have sufficient mental capacity to make decisions providing the supportive financial structure of a full discretionary trust remained in place. They both agreed that should this not be the case and L failed to make a further trust, L’s cognitive and behavioural problems would impair his ability to manage his affairs. In such circumstances, L would be a patient for the purposes of Part 7 of the MHA and CPR Part 21.1 (2). A third medical opinion from Dr L stated that L was unlikely to attain full independent living, his prospects of employment were poor and that he would not regain his financial competence. He was also concerned about L’s vulnerability, suggestibility and ability to be manipulated. As to whether L was a patient Dr L put him close to the borderline and that any large sum of money awarded to him should be managed in a personal injury trust fund.
The court considered the likely outcomes of this case and how L might deal with any offers of settlement. It was concerned about how he may deal with financial advice that he was given. Evidence from his wife’s suggested that he would be unable to manage a complex decision about which type of settlement would be best for him. Nor in the court’s opinion would L be able to weigh up the merits of conflicting advice from professional advisers. The court found the evidence presented by L’s wife compelling and preferred the picture she painted of her husband in “real life” situations to that of the “artificial” conditions of a medical assessment. The court felt that the medical experts had to some extent underestimated the degree of L’s incapacity perhaps because of the differences between clinical and normal conditions and performance. It held that L did meet the criteria for being placed under the Court of Protection. It was not right to proceed on the basis that L would be a patient but for his decision to agree to place any future award into a trust. The court held that L was a patient within the meaning of Part 7 of the MHA and CPR Part 21.