Clinical Negligence Quantum Updates

Courtesy of Helen Mulholland

CG v NIGDIKAR (2013) AM0202405

Lawtel reference: AM 0202405

Age of Claimant: 29

Injury: Severe blood loss following tooth extraction

Total Damages: £4,000

Damages for Pain, Suffering and Loss of Amenity: £4,000

The Claimant alleged that the Defendant performed an inappropriate extraction, as her INR was unstable. 

The Claimant was said to have experienced pain, discomfort and emotional stress as she had to be hospitalized for three days whilst her bleeding was brought under control. She was rendered anaemic (albeit temporarily) and required additional trips to her GP.

XV v MAYDAY HEALTHCARE NHS TRUST (2012)

Lawtel reference: AM 0202399

Age of Claimant: 31

Injury: wrongful birth claim

Total Damages: £2,300,000

Pain, Suffering and Loss of Amenity: £35,000

The Claimant’s partner’s family had a history of spinal muscular atrophy (SMA) and that she was concerned that her unborn child might have the condition. Although the midwife made a note of this, the Claimant was not offered an appointment with a consultant or any diagnostic test.

The Claimant’s baby was born with congenital spinal muscular atrophy. 

The Claimant’s evidence was that if she had been offered the test, she would have taken it and would have undergone further screening. She asserted that, after counselling, she would have opted to have a termination.

  

BLYTH v (1) NORTHERN LINCS & GOOLE HOSPITALS NHS TRUST (2) UNITED LINCS HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202382

Age of Claimant:, 23

Injury: ectopic pregnancy.

Total Damages: £5,500

Damages for Pain, Suffering and Loss of Amenity: £5,363.75

CS v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2013) 

Lawtel reference: AM0202384

Age of Claimant: 69

Injury: pain and suffering following negligent hip replacement

Total Damages: £75,000

Damages for Pain, Suffering and Loss of Amenity: £35,000

The Claimant was said to have experienced severe pain and discomfort for a period of twelve months prior to revision surgery including numbness in her right side and numerous fallsand to have undergone an unnecessary hip revision.

SPENCER v ONCERIU (2013)

Lawtel reference: AM0202391

Age of Claimant: 60

Injury: tongue laceration during dental procedure

Total Damages: £902

Damages for Pain, Suffering and Loss of Amenity: £750

The duration of the injury was three weeks.

EK v BIRMINGHAM WOMEN'S NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202388

Age of Claimant: 32

Injury: failure to identify and treat internal bleeding and bruising leading to physical symptoms and psychiatric injury

Total Damages: £40,000

Damages for Pain, Suffering and Loss of Amenity: £37,000

The Claimant suffered a delay in internal bleeding being diagnosed and treated. Whilst she was suffering the symptoms of the bleed, she was scared and had a genuine belief that she would die.

PENDLEBURY v F & H (2013)

Lawtel reference: AM0202383

Age of Claimant: 55

Injury: failure to diagnose and treat periodontal disease

Total Damages: £35,000

Damages for Pain, Suffering and Loss of Amenity: £16,000

The Claimant suffered bone loss of 80% in UR5 UR4 UR2 UL4 and UL5. She had to have extractions of several teeth and underwent implant replacement.

TH v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2012)

Lawtel reference: AM0202385

Age of Claimant: 67

Injury: pain and suffering following negligent hip replacement.

Total Damages: £100,000

Damages for Pain, Suffering and Loss of Amenity: £30,000

The Claimant suffered 20 months pain and suffering and had to undergo unnecessary revision surgery.

XXX v BARNET & CHASE FARM HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202374

Age of Claimant: 10

Injury: injuries following a failure to diagnose pneumococcal meningitis

Total Damages: lump sum of £2,900,000 plus periodical payments

Damages for Pain, Suffering and Loss of Amenity: £275,000

The Claimant suffered severe spastic quadriparetic cerebral palsy, epilepsy, sensorineural deafness and significant learning difficulties. The Claimant would require care for the rest of his life.

KA v DERBYSHIRE HEALTH UNITED (2013)

Lawtel reference: AM0202368

Age of Claimant: 22

Injury: injuries arising from failure to diagnose gastric perforation

Total Damages: £80,000

Damages for Pain, Suffering and Loss of Amenity: £40,000

The delay in diagnosis led to complications, including a chest and wound infection. The Claimant also had scarring, psychological injuries, and would potentially experience fertility problems in the future.

TMR v ROYAL DEVON & EXETER NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202371

Age of Claimant: 30

Injury: failure to carry out appendicectomy as part of surgical treatment for ovarian cancer

Total Damages: £8,500

Damages for Pain, Suffering and Loss of Amenity: £7,500

The Claimant underwent a total abdominal hysterectomy and removal of the remaining ovary followed by infra-colic omentectomy and paraaortic node sampling. She had been told that she would also require an appendicectomy But this was not in fact carried out.

The Claimant had to endure a third open surgery procedure, and thereafter spent weeks recuperating from this.

JLH v COUNTY DURHAM & DARLINGTON NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202372

Age of Claimant: N/A (Fatal Claim)

Injury: Post partum haemorrhage, hypothermia, hypovolaemia

Total Damages: £565,000

Damages for Pain, Suffering and Loss of Amenity: £17,000 (est)

At the inquest, the coroner gave a narrative verdict, stating that medical management of the postpartum haemorrhage, subsequent hypothermia and possible hypovolaemia, together with a lack of medical and midwifery communication, contributed to the Deceased’s subsequent medical complications which ultimately led to her death.

Claims were brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.


TH v THE LEEDS TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202370

Age of Claimant: 58

Injury: pressure sore

Total Damages: £25,000

Damages for Pain, Suffering and Loss of Amenity: £23,000

The Claimant received poor post-operative care and developed a pressure sore which was said to be grade 2. It was dressed daily, but developed into a grade 3 lesion. The pressure sore gradually improved, but the Claimant was left with scarring and pain.

JN v (1) EAST CHESHIRE NHS TRUST (2) ST HELENS & KNOWSLEY TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202373

Age of Claimant: 60

Injury: amputation of right leg

Total Damages: £1,100,000

Damages for Pain, Suffering and Loss of Amenity: £100,000

The Claimant was examined in November 2007 in the Defendant’s Emergency Department. She was seen by a senior house officer who did not note the pain in the Claimant’s legs or coldness of her feet (although the Claimant’s son later insisted that both he and C had provided such information). The Claimant claimed that there were further opportunities to identify vascular compromise that were missed.

The case settled without admission of liability.

TCM v WARDLE (2013)

Lawtel reference: AM0202376

Age of Claimant: 73

Injury: tongue laceration

Total Damages: £14,500

Damages for Pain, Suffering and Loss of Amenity: £12,000

The Claimant’s tongue was lacerated during a dental procedure. Liability was denied. The Claimant had permanent symptoms of paraesthesia and some psychological symptoms .

H v ANEURIN BEVAN LOCAL HEALTH BOARD (2013)

Lawtel reference: AM0202378

Age of Claimant: 40

Injury: delay of 11 days in diagnosing ulna fracture leading to surgical intervention

Total Damages: £1,500

Damages for Pain, Suffering and Loss of Amenity: £1,500

A v BEDFORD HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202377

Age of Claimant: 53

Injury: perforated bowel

Total Damages: £54,000

Damages for Pain, Suffering and Loss of Amenity: £35,000

AW v OXFORD UNIVERSITY HOSPITALS NHS TRUST (2012)

Lawtel reference: AM0202367

Age of Claimant: 46

Injury: severe bleeding (caused by administration of excessive heparin) which caused infection in the knee

Total Damages: £196,000

Damages for Pain, Suffering and Loss of Amenity: £40,000

The Claimant had significant knee symptoms for which she underwent a total knee replacement. Tests undertaken prior to surgery were said to confirm that she had antiphospholipid syndrome conferring a thrombotic tendency and that she needed to remain on warfarin for the rest of her life. It was stated that she needed 'good thromboprophylaxis' following a total knee replacement.



When the Claimant was admitted for her left total knee replacement, she underwent a heparin infusion and her records noted UFH 25,000 in 50ml. Following the operation, the heparin was stopped and C was noted to be feeling unwell and faint, and blood was oozing from her wound. C was subsequently transfused four units of blood and was seen by consultants. It was noted that C was feeling faint and light-headed and that there had been lots of fresh oozing from the wound overnight but there was no evidence of compartment syndrome. On investigation, it appeared highly likely that the post-operative syringe driver contained 125,000 units of UFH rather than 25,000 units and this would explain the over anticoagulation and bleeding.

The Claimant suffered pins and needles and blistering in the knee. She underwent blood transfusions. She developed an infection in the with sudden pain, redness and swelling of the left knee and was referred to hospital where she underwent a surgical washout and debridement.

The Defendant admitted breach of duty but disputed causation and the claim was settled. 



SZ v TEACHING HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202398

Age of Claimant: 27

Injury: paraplegia

Total Damages: £2,977,000 lump sum and periodical payments of £100,000 per annum rising to £154,000 after 10 years.

Damages for Pain, Suffering and Loss of Amenity: £220,000 

The Claimant underwent a pancreatic transplant aimed at managing his diabetes. Pain relief was to be managed via a spinal block, but the anaesthetist had difficulty inserting the Tuohy needle. At the third attempt, the Claimant’s spinal cord was damaged, rendering him paraplegic.

Liability was admitted.

The Claimant worked in a builders' merchants on a management trainee programme at the time of his injury. He had always worked in employment of a manual nature. C was therefore at significant disadvantage on the labour market and had failed to hold down any continuous employment at the date of settlement.


The Claimant needed to be urgently rehoused in a council property. Interim damages were thereafter sought to rehouse C in a property more appropriate to his needs.

The settlement was approved by the Court. The full breakdown is available on Lawtel.

NF (ON BEHALF OF THE ESTATE OF X DECEASED) v BLACKPOOL TEACHING HOSPITALS NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202397

Age of Claimant: N/A FAA CLAIM

Injury: pressure sores

Total Damages: £30,000

Damages for Pain, Suffering and Loss of Amenity: £10,000

The Claimant fell and fractured her left humerus whilst an inpatient. She had previously been assessed as having a high risk of falling. She developed several pressure ulcers on her body including one grade two ulcer on her sacrum. Her condition deteriorated and she died.

Cerebral Palsy Claim Defeated at Trial

The Decision of Mr Justice Phillips in the High Court in Aspinall-v-Sec of State for Health [2014] EWHC 1217 (QB)  illustrates the difficulty which can arise for a claimant who relies on inference to prove breach of duty and the limitations of seeking to apply of Bailey-v-MOD, writes Nigel Poole QC.

The case involved allegations of negligence concerning the Claimant's neonatal management in 1982. The Cliamant had been born by Caesarean section at 32 weeks gestation in poor condition. In the first hours of life he was intubated and was noted, at about 0015 hours on the day after birth, to be suffering from metabolic acidosis. He developed hyaline membrane disease and an intraventricular haemorrhage and hydrocephalus with resultant severe cognitive and physical disability.

By the end of the trial, which was on liability only, the sole focus of dispute was on the allegedly negligent failure to detect and rectify a problem with the Claimant's ventilation during a 45 minute period between 2330 hours and 0015 hours, when he was 2-3 hours old. It was common ground that by 0015 hours the Claimant's endotracheal tube had slipped out of position. the Claimant's case was that the seriousness of the Claimant's condition at that time indicated that it was likely that the tube had slipped out of position by 2330 hours after which time some oxygen had reached the Claimant, but not a sufficient amount.

According to the judgment this case arose out of oral evidence from the Claimant's expert. The Judge rejected it for two principal reasons. First, the theory was "no more than speculation, it being more likely that the tube was disturbed" when checks were made at about 0015 hours. Second, the doctor concerned with the Claimant's care (over 30 years previously) said in evidence that she would have been watching the Claimant's breathing on a continual basis and would have noticed if he had ceased to breathe in time with the ventilator.

The Judge was satisfied that the Claimant's deteriorating condition up to 0015 hours was explicable by his condition at birth rather than deprivation of oxygen in the neonatal period. The Claimant could not, in the judge's finding, prove causation on a "but for" analysis. His Counsel relied, in the alternative, on Bailey-v-MOD, contending that the 45 minute period made a material contribution to the subsequent brain damage. the Judge rejected that argument:

"...this is not a case of cumulative agents, where it is impossible to determine whether or not a negligent act caused any injury. In this case the experts have been able to express a clear view as to whether the injury would or would not have occurred in any event and I have found that because of the Claimant's condition at birth, it would have occurred notwithstanding the 45 minute period in question.
"I accordingly hold that, even if the Defendant had been responsible for the worsening of the Claimant's condition between 2330 and 0015 (contrary to my finding above) I would not have found that such matters caused the Claimant's ultimate brain injury."

Bailey-v-MOD will not apply unless medical science cannot answer the but for test one way or the other. If the Court is satisfied that the evidence answers the but for test negatively from the Claimant's point of view, then Bailey-v-MOD does not permit a "second bite at the cherry".

What is deprivation of liberty? The Supreme Court speaks

The Supreme Court has this morning overturned the Court of Appeal in the cases of P (by the Official Solicitor) v Cheshire West and Chester Council, and P & Q (or MIG & MEG)(by the official Solicitor) v Surrey County Council [2014] UKSC 19. In what is the most far-reaching human rights case heard in the UK for a decade, the Supreme Court reversed the Cheshire West decision by 7 Justices to 0, and Surrey decision by 4 to 3.

The cases rested on what is the proper test to be applied to determine where there is a deprivation of liberty when mentally incapacitated people are required to live in a place when they could not (and therefore did not) consent? These places could be hospitals or care homes, but in the three appeals before the Supreme Court they were an independent supported living placement, a unit for learning disabled young people and a foster home. If they are deprived of their liberty, Article 5 of the European Convention is engaged and protections including periodic reviews of their detention are triggered. Their detention must be authorised and reviewed by the Court of Protection. Where the statutory scheme applies, in hospitals and care homes, detained residents fall within the so-called DOLS (deprivation of liberty safeguards), which is an administrative procedure whereby people may be detained without the authority of a Court (albeit with the right of appeal to one).

The Court had to decide whether the “test” to be applied should include factors such as “the relative normality” of the surroundings in which the person is placed (the more “normal” the less it was likely to involve deprivation of liberty); whether the person (or their relatives or carers) objects to the placement (if they do not it is less likely to involve deprivation of liberty); whether a person with comparable disabilities would be expected to live in a less restricted environment (if so, it is more likely to be a deprivation); whether the reason or purpose for the placement is a relevant factor (if the measure is an appropriate way of achieving the best for the person, the less it is likely to amount to a deprivation)? These were factors that the Court of Appeal had suggested were relevant.

The majority of the Supreme Court rejected these factors as part of the test. Lady Hale (with whom Lords Neuberger, Kerr and Sumption agreed) emphasised the universality of human rights:

           

In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorable from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights, rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focused right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage”.

Consequently, the “relative normality” of the placement, and the reason for the person being placed there were not relevant factors in determining whether the person was deprived of their liberty. The comparator survived, but not in the form envisaged by the Court of Appeal. The comparator was not another person with similar disabilities, but an ordinary person without mental incapacity. Furthermore, the person’s compliance or lack of objection was also not relevant.

Lady Hale then went on to ask whether there is an acid test for deprivation of liberty in these cases? She reviewed the Strasbourg case law and agreed that the classic test Guzzardi v Italy (1980) 3 EHRR 333 is repeated in all the ECtHR cases: i.e. the starting point is the “concrete situation of the individual”, and then one must always “take account of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question”. Lady Hale was sure that these would confidently be repeated once again if these cases were to go to Strasbourg.

Then she goes on (at para [48]) (my emphasis)

“But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their ‘concrete situation’ on which we need to focus”

At [49] she identifies the key factor as being whether the person is under continuous supervision and control and not free to leave.

That is the test.

What is meant by “free to leave”? Lady Hale refers to Munby, J. in JE v DE [2007] 2 FLR 1150 where he had defined “freed to leave” as “not just for the purpose of some trip or outing approved by [the local authority] or those managing the institution: I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses..”

The fact that a placement may have “relatively open conditions” was no more determinative of deprivation of liberty than (for example) open hospital conditions (in e.g. Ashingdane v UK (1985) 7 EHRR 528).

There were 5 judgments in the case. Lord Neuberger and Lord Kerr agreeing with Lady Hale (as did Lord Sumption, although without writing his own judgment). Lord Carnwath and Hodge jointly disagreed with Lady Hale that the test should go as far as she did. They considered that the Strasbourg cases fell short of a universal test of the sort Lady Hale put forward, and that there was insufficient certainty that Strasbourg would have gone as far as she did. They preferred a balancing of the numerous factors outlined in the cases (intensity or restriction, manner of implementation etc). Lord Clarke agreed with Lords Carnwath and Hodge.

Conclusions:

·         This case should be seen as an affirmation of the principles of the Mental Capacity Act.

·         It recognises those who lack capacity as being equal with those who do not. If the concepts of relative normality, Munby L.J.’s comparator, and the significance of an absence of objection had been determining factors in whether Article 5 applied the result would have been to remove those protections from those who need them the most.

·         The test fits in with the ethos of the United Nations Convention on the Rights of Persons with Disabilities.

·         During the hearing the Justices had been concerned that if the test put forward by the Official Solicitor were to be accepted it would lead to large numbers of people coming within the protection of Article 5 (including those who would fall under the DOLS), and this would create bureaucratic difficulties as well as considerable cost. This remains to be seen. But in the week that the House of Lords Select Committee was so scathing of the inadequacy of the protections afforded by the DOLS, it may be that this judgment will ensure that those who have not fallen under the protection of the regime will now do so. It is suggested that this will be a good thing.

·         Another concern was that if the test for deprivation of liberty was as sought by the Official Solicitor, it would mean that a number of people would, in fact, be detained who could not lawfully be so. These include patients subject to guardianship, community treatment orders or conditional discharges under the Mental Health Act. These orders do not without more authorise deprivation of liberty (although they are often used as if they do). In the case of guardianship, the patient is certainly not free to leave in the sense of living where he chooses- that is the prerogative of the guardian. However, he may not be deprived of his liberty if there is an absence of continuous supervision and control. For instance, many guardianship patients are free to spend their days doing what they like, where they like- but have to reside at a particular address. They are not free to leave so that they can live somewhere else, but they are not subject to continuous supervision.  It remains to be seen whether the Supreme Court’s test creates a conflict between the two regimes.

·         Finally, the test will hopefully bring clarity to an area that had become almost impossibly difficult to predict. Lets hope the BIAS, clinicians, social workers, IMCAs, legal advisers and Judges, as well as the people concerned and their families will find it easier to identify a “DOL” after Cheshire West!

Simon Burrows was instructed by O’Donnells, Preston on behalf of the Official Solicitor for P in the Cheshire West case from first instance to the Supreme Court. He was led by Richard Gordon, Q.C. in the Court of Appeal and the Supreme Court, and was co-junior with Amy Street in the Supreme Court. 

Please click here for the link to the judgment http://supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf 

End in Sight for DOLS

The end in sight for DOLS, asks Simon Burrows

In a somewhat damning report the House of Lords Select Committee has recommended a wholesale overhaul of those parts of the Mental Capacity Act 2005 that regulate the detention of mentally incapacitated people in hospitals and care homes. The report – see http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf

is scathing of the badly drafted Schedule A1 to the Act, introduced by the Mental Health Act 2007, which has attracted the title Deprivation of Liberty Safeguards (or DOLS) although this has been seen as a misnomer by many in the relevant professions for some time. As the Committee makes clear, many who should be safeguarded are not and many thousands of incapacitated people may be detained in care homes and hospitals throughout the country with little or no legal safeguards to protect them.

The report comes a week before the Supreme Court hands down its judgment in what has become the seminal case in determining which people who are placed in supported living arrangements and, by implication, hospitals and care homes are in fact deprived of their liberty. It is hoped that P (by the Official Solicitor) v Cheshire West & Chester Council and P & Q (By the Official Solicitor) v Surrey County Council when handed down on Wednesday 19^th March will clarify at least one difficult area that has led to the widespread misunderstanding that the House of Lords finds so prevalent.

Simon Burrows, who acted for P in the Cheshire West case from first instance to the Supreme Court, will provide another note on the judgment on Wednesday morning.

Capacity and Protecting Parties from their Lawyers - Dunhill-v-Burgin

The Supreme Court has given a succinct and clear judgment in the case of Dunhill-v-Burgin [2014] UKSC 18 . writes Nigel Poole QC

In 1999 Ms Dunhill, was a pedestrian when she was struck by a motorcycle driven by the appellant, Mr Burgin. She suffered a severe head injury. In May 2002 she brought a claim for damages and on the day of trial settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for £12,500 plus costs.

In fact Ms Dunhill had suffered very serious injuries and this settlement represented a gross undervalue of her claim (provided she could prove negligence). In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, and an application was made that the consent order should be set aside.

Two preliminary issues arose. What was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. Was it a test of here capacity to litigate in a general sense or was it a test of her capacity to consent to the settlement? Further, what were the consequences if a person lacked capacity but their claim was settled without court approval under CPR Part 21.10. The Defendant did not argue that retrospective approval should be given. In other cases that might very well be a pertinent issue.

The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal disagreed and held that she had to have capacity to conduct the more complicated action which ought to have been brought. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10.

The Supreme Court gave permission to Mr Burgin to appeal against both findings and dismissed the appeals, lady hale giving the judgment of the court. The test properly to be applied was whether Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers which might depend on whether advice given was good or bad. On this test it was common ground that Ms Dunhill lacked that capacity [13-18].

The effect of incapacity
It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhill’s incapacity [22].

Although there was a need for finality in litigation, and the difficulty of re-opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32-33]. Accordingly the consent order must be set aside and the case go for trial [34].

The case appears to leave open the question of whether and in what circumstances it would be right retrospectively to approve a settlement notwithstanding that approval was needed but not obtained at the earlier time. In this case there was a large disparity between the damages recovered and the award which might be recoverable - that might be a salient factor in any future disputed case.

Manchester provided barristers  for both sides in this appeal and the successful solicitors (Potter Rees).

Westminster CC-v-Sykes

Sam Karim of the Kings Healthcare Team writes about the recent Court of Protection decision in City Council v Sykes [2014] EWHC B9 (COP).

Although MS suffers from dementia and lacks capacity, there were sufficient factors to justify a trial period of home care rather than the deprivation of her liberty in a nursing home. The judgment was published and MS’s anonymity lifted in light of the public interest of the case and the personal characteristics of MS weighing in factor of such an outcome.

MS, an 89 year old who suffers dementia, was deprived of her liberty at QX Nursing Home by virtue of a standard authorisation granted by the local authority under the Mental Capacity Act 2005. MS repeatedly expressed her wish to return to her home in central London. On 19 September 2013, the court issued a section 21A application, by which the local authority asked the court to review the standard authorisation relating to MS. MS and her litigation friend’s opposed her MS’s placement in the nursing home.

The local authority highlighted problems experienced by MS leading up to her admission: lack of acceptable care, altercations with neighbours, self-neglect, unhygienic living conditions, wandering and a lack of awareness of personal safety.

HELD: Due to her dementia, MS lacked capacity to make relevant decisions for herself. There was only one requirement really in issue in relation to this case: that of the best interests of MS. This is an objective test, taking in a diverse range of factors. The task was to identify which of these factors should be compromised in the best interests of MS. The Court found that the risks involved in there being a one month home care trial period were acceptable and manageable, so as to justify a home care trial taking place. The local authority was to put a home care plan in place, along with plans for what would happen if the trial failed, or MS’s funding ran out.

The interference with MS’s home and private life was said to be prescribed by law, a proportionate means of dealing with the risks to MS and for the permitted purpose of attending to MS’s health.

The Court thus held that the standard authorisation would not extend after the point that MS returned home.

Anonymity/Reporting

The normal rule is that the anonymity of an incapacitated person and their family members should be preserved. Nonetheless, the Court held that there was good reason for this judgment to be published. The case involved matters of fundamental rights, such as deprivation of liberty and the rights of incapacitated persons, and there was a clear public interest in it being imparted.

It was appropriate to lift the veil of anonymity, although this was noted to be an unusual case in which the case for being named outweighed the usual anonymity. MS’s personal characteristics were said to be a critical factor, in particular, she always wished to be heard and would want to exert a political influence. By contrast, the family of MS, her nursing home and her professional carers could not be named unless they chose to name themselves. The local authority and experts could be named.