Judge: Loughlin v Singh & Ors
Citation:  EWHC 1641 (QB)
Summary: This judgment concerned the assessment of damages in a personal injury claim on behalf of a young man who had sustained brain injuries in a traffic accident. An issue arose as to whether he had capacity to litigate and to manage his property and affairs (it appears from the judgment that the two matters were essentially conflated).
Kenneth Parker J cited the familiar authorities, and considered the competing medical evidence. On the one hand, various professionals expressed the view that provided the Claimant received proper advice and support, he would be able to take that advice on board in making decisions about his property and financial affairs. He would be vulnerable to exploitation or rash decision-making if he was fatigued, but provided he was given advice at times when he was well-rested, he would be able to make his own decisions. The contrasting opinion was that the Claimant’s executive dysfunction went beyond the boundaries of the normal range of disorganisation that might be displayed by a 22-year old, that he was vulnerable to making a reckless decision, that he would not seek advice when he needed it, and that he therefore lacked capacity to manage his property and financial affairs. The Claimant’s family and those working with him agreed that he lacked capacity in this respect.
Kenneth Parker J acknowledged that the question of the Claimant’s capacity was finely-balanced, and (at paragraph 46) noted that a particular difficulty was that:
“In respect of executive capacity and the ability to manage his affairs, it was intrinsically difficult to separate conduct and patterns of behaviour, that might bear upon the relevant assessment, that were wholly or mainly attributable to psychological explanation rather than wholly or mainly attributable to the organic brain injury. In simple terms many young men, who suffer no brain injury at all, are indolent, unmotivated and prone to make financial, and other, decisions that are unwise or even calamitous.”
Kenneth Parker J concluded that on the balance of probabilities, the Claimant lacked the capacity to litigate and to manage his property and affairs, accepting the evidence of a Dr O’Driscoll who concluded that the Claimant’s difficulties with weighing information were due to his brain injury. In particular, Dr O’Driscoll’s evidence was that the Claimant could not anticipate the consequences of his actions at either a behavioural or emotional level. Thus, although he might be able to make a decision in a ‘laboratory setting’, he would not be able to make a decision in the real world – he would be ‘vulnerable in an unpredicted and unmanaged environment.’ Nor would he seek assistance of his own initiative.
Kenneth Parker J also pointed out the importance of ensuring that the Court of Protection has ‘all the material which, on proper reflection, is necessary for a just and accurate decision.’ That issue arose because it transpired during the proceedings that there had been medical reports prepared which concluded that the Claimant had capacity to manage his property and financial affairs, but these were not disclosed to the Court of Protection, and a District Judge had therefore appointed a financial Deputy for the Claimant without full knowledge of the relevant evidence.
Comment: The analysis of capacity in this case is very interesting. Firstly, the judge stated that ‘If the Claimant is vulnerable to exploitation or is prone to make rash or irresponsible decisions, he does not necessarily lack capacity. However, the Court in reaching its conclusion may take such matters into account.’ (paragraph 21). No further explanation of this view was given, but it is immediately obvious that it could easily violate the requirements of the MCA. It could be permissible for the court to take vulnerability to exploitation, and a propensity to make rash decisions into account, if that is limited to the analysis of whether P’s mental impairment is causing P to be unable to weigh up information to make a decision. A history of exploitation or rash decisions may well flag up this issue and raise a query as to whether P is able to satisfy that part of the capacity test. However, as the Court of Appeal has recently confirmed in PC and NC v City of York Council  EWCA Civ 478, these factors cannot be used directly to determine that P lacks capacity. People with mental impairments can make capacitous unwise decisions, and if those decisions are caused by the interplay between mental impairment and influence of other people, it is not necessarily the case that s.2 of the MCA 2005 is satisfied.
Secondly, the case raises the perennial question of whether someone who can make a decision with support, can be said to lack capacity. Article 12(3) of the UNCPRD says no. The MCA arguably says no – all practicable steps must be taken to help P make his or her own decision. If P struggles to identify the consequences of deciding in a particular way, P should be given that information and helped to use it to make a decision. P does not have to be able to identify all the relevant information to a decision himself without assistance. But of course, if P does not have a financial deputy, how will that process of supported decision-making actually occur? Perhaps the solution is that a deputy is appointed, but that for all decisions, the deputy is required to attempt actively to assist P to make the decision himself, before making any decisions based on best interests – begging the question of whether that is a remotely realistic possibility in the world of the professional deputy.
Thirdly, the case touches on the difference between having capacity in ideal conditions – with support, not under pressure and so on – and lacking capacity ‘on the ground’. In the caselaw concerning capacity to consent to sexual relations, it has been held that capacity in ideal conditions is sufficient: if one then goes on to consider capacity ‘on the ground’, that is to confuse the having of capacity with the exercise of capacity. Thus, someone who understands what sex is, and what the risks of it are, when asked by a psychologist, is deemed to have capacity to consent to sexual relations (in the civil jurisdiction), even though there is a wealth of evidence that none of that information will be weighed up by the person in the heat of the moment or when a particular individual is propositioning the person. In contrast, in this case, the reality of P’s inability to make decisions other than in ideal conditions, was a deciding factor in the decision that P lacked capacity to manage his property and financial affairs. Are such differences in approach according to the subject matter of the decision permitted under the MCA?
Having regard to these three issues, it appears to the editors that the case may well have been decided differently had it proceeded in the Court of Protection.