2014 03 Incapacity

Tuesday 1 April 2014

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Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18 (Baroness Hale, Lord Dyson MR, Lord Kerr, Lord Wilson, Lord Reed JJSC): in 1999 Ms Dunhill had sustained a road traffic accident caused by Mr Burgin and sustained a severe closed head injury along with other injuries. She brought proceedings for damage for personal injury against her which were compromised in 2003 by a consent order providing for £12,500 damages. This was a gross undervaluation of her claim and had been negotiated outside Court by her counsel on the day of the trail. She was not acting through a litigation friend. In 2006, she sought the advice of new solicitors. In 2008, acting through a litigation friend, she issued proceedings for professional negligence against her former solicitors and counsel and also applied for a declaration that in 2003 she did not have the capacity at the time of the purported settlement and that the consent order should be set aside. The parties agreed that, in 2008, the Claimant was a patient. They also agreed that the test for whether or not she had had capacity in 2003 was her capacity to make the decisions likely to be required of her in the course of proceedings. The Defendant submitted that, since the case had been put on a simple basis by her lawyers, all that was at issue was whether the Claimant could understand enough to decide whether to accept the amount offered in 2003. He also submitted that the public policy of finality in litigation and the consent order should not be set aside. The Claimant submitted that the issue was whether she had the capacity to make the decisions in relation to the proceedings as they might have been brought. Baroness Hale, with whom all the other Justices agreed, held that the test of capacity was whether or not the Claimant had the capacity to conduct the claim which she in fact had, rather than as formulated by her lawyers. That applied even before the Mental Capacity Act 2005 came into force. The Claimant did not have capacity in 2003. She had not been represented by a litigation friend. The policy of legal certainty did not answer the legal question and did not outweigh the protection that children and protected parties are accorded by CPR 21. The consent order was set aside. Masterman-Lister v Brutton & Co (Nos 1 & 2) was affirmed. Click here for the judgment.

In the matter of AK [2014] EWHC B11 (COP) (Senior Judge Lush): AK was an eleven year old who had cerebral palsy. He had been awarded a lump sum payment of £1,050,000 plus annual periodical payment, having sued the NHS for clinical negligence. His deputy applied for an order gifting his parents, who cared for him, £150,000 towards the building of a property in Pakistan suitably adapted for his complex needs. The Judge applied the best interests checklists and considered the pros and cons of making the gift. He concluded that it was in AK’s interest to allow the transaction to proceed by way of an interest free loan, repayable over ten years, and that the parents should receive an annual gift in the amount of the repayment. Click here for the judgment.

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend the Official Solicitor) v Surrey County Council [2014] UKSC 19 (Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge: P and Q (otherwise known as MIG and MEG) were young women who had learning disabilities, aged respectively 18 and 17 at the time of the Court of Protection hearing. MIG was placed with a foster mother, to whom she was devoted, and went to a further education unity daily. She never attempted to leave her foster home herself but would have been restrained had she tried. MEG resided in an NHS facility for learning disabled adolescents with complex needs. S was accompanied by staff whenever she left, but showed no wish to go out on her own. She attended the same further education unit as her sister. She sometimes required physical restraint and received tranquillising medication. Parker J held that their living arrangements did not amount to a deprivation of liberty. The Court of Appeal agreed.

P was 38, had cerebral palsy and Down’s Syndrome and required 24 hour care. He resided in a staffed bungalow with other residents and had one to one support to enable him to leave the house frequently for a variety of activities including visiting his mother’s home. He needed to wear an all-in-one body suit to protect him from harmful behaviour and intervention was needed to protect him from other challenging behaviour. Baker J held that his care arrangements were a deprivation of his liberty but were in his best interests. The Court of Appeal declared that the arrangements were not a deprivation of liberty.

The Supreme Court, unanimously in the appeal of P and by a majority of 4 to 3 in the appeals of MIG and MEG, allowed the appeals. It held that MIG, MEG and P had been deprived for their liberty.

Lady Hale gave the main judgment. There was no case in Strasbourg which concerned these types of placements. The acid test was whether the person was under continuous supervision and control, and not free to leave. The factors that were not relevant were the person’s compliance or lack of objection, the relative normality of the placement and the reason or purpose behind the particular placement. A periodic independent check was required on whether the arrangements were in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty Safeguards.

Lord Carnwath and Lord Hodge, in the minority, agreed that the comparator should in principle be with a person of unimpaired health and capacity but they, and Lord Clarke, expressed concern that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. They held that Parker J’s decision was consistent with Strasbourg jurisprudence; Baker J had correctly directed himself in a marginal case. Click here for the judgment.

Garden Court Chambers Seminar: Garden Court Chambers will be holding a seminar on “Deprivation of Liberty and the MCA 2005” on 30 April 2014, 6.30 pm. Please see the details on our main website.

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