Judge: Sharp J.
Citation:  EWHC 61
Summary: This wonderfully-named case arises in a context relatively far removed from the Court of Protection, namely a professional negligence action against a firm of solicitors involved in the sale of home of Mrs Hill (the mother of Mr Thorpe). It does, however, provide a useful restatement of the principles governing the circumstances under which solicitors should take steps to confirm whether their clients lack capacity to give instructions.
For present purposes, the material contention on the part of the Claimant was that the solicitors had acted on the sale of the house without proper instructions because Mrs Hill was suffering from dementia. The evidence of the jointly instructed neurological expert, accepted by Sharp J (in the face of attempts by the Claimant to seek to undermine that evidence that the judge deprecated in strong terms) was that in Mrs Hill was suffering from mixed degenerative and vascular dementia. He concluded it was likely that this would have caused Mrs Hill cognitive difficulties. However, in his view:
“cognitive function can be quite impaired and yet a patient can still have free will and sense of what they want and what they do not want. It would be egregious to deny patients with dementia a say in their own care and a say in the disposal of their possessions. Just because their intellectual capacity is reduced it does not mean that they do not have the right to still make decisions. It is impossible ever to know exactly when the capacity to make decisions is completely lost, but when assessing this medically one would question the patient about how she understands the effect of her decision on other people and if the patient does understand this, even if there is profound cognitive compromise, then I would suggest that capacity is retained.
There is evidence from the solicitors that they met the client and she did understand the instructions and was, in fact, quite vehement in her direction to make a sale of the house and she understood the implications of this. Therefore my conclusion is that although she had cognitive problems that may have interfered with her decision making [s]he still had capacity in the sense that this was her opinion at the time and this was the expression of her free will.”
The expert concluded it was unlikely that Mrs Hill’s dementia would have been apparent to a competent solicitor: “Many patients with dementia actually come across as quite sociable and engaging and are able to … answer a number of questions reasonably coherently. This all depends on what type of dementia is occurring but I think it would be entirely plausible that someone with mild to moderate dementia, as Mrs Hill, was suffering from, would not be apparent to a solicitor who engages her in conversation for the first time.”
It was only if a solicitor perceived that there might be medical issues that a doctor’s report would be obtained: “but as far as I understand it the medical circumstances surrounding Mrs Hill were never discussed with the solicitor and one would not expect them to be discussed.”
He said that overall, he shared some disquiet about this case and the sense that Mrs Hill’s intellectual function was definitely impaired at the time she made these decisions. Nevertheless, his conclusion was that: “… there is no reason to suppose that actually [Mrs Hill] was not acting with capacity at the time and this was not the expression of her free will.”
In further written responses, the expert said there had been no change in the tests applied to assess cognitive function over the relevant period; and “Patients with dementia can be vulnerable to influence by other people. The dementia may impact on the understanding of particular matters. However, even patients with quite severe dementia could still have formed and reasonable opinion” (sic).
Sharp J concluded (at paragraph 74) that there was no evidence that the solicitor in question knew at the material time that Mrs Hill was suffering from dementia, or ought to have appreciated that this was the position during the course of the retainer (indeed, this was apparently not put to the solicitor in cross-examination). She continued (at paragraphs 75 ff):
“A solicitor is generally only required to make inquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner; see, Jackson & Powell at 11-221 and by analogy Hall v Estate of Bruce Bennett  WTLR 827. This position is reflected in the guidance given to solicitors in The Guide to the Professional Conduct of Solicitors (8th edition, 1999) which was in force at the relevant time, where it is said that there is a presumption of capacity, and that only if this is called into question should a solicitor seek a doctor’s report (with the client’s consent) “However, you should also make your own assessment and not rely solely upon the doctor’s assessment” (at 24.04).
76. In opening, the Claimant’s case was put on the basis that [the solicitors] ought to have been “more careful” with regard to the sale of the Property because Mrs Hill was suffering from dementia and did not really know what she was doing. The relevant test where professional negligence is alleged however is not whether someone should have been more careful. The standard of care is not that of a particularly meticulous and conscientious practitioner. The test is what a reasonably competent practitioner would do having regard to the standards normally adopted in his profession: see Midland Bank Trust Co Ltd v Hett Stubbs and Kemp  Ch 384 at 403 per Oliver J at 403.
77. I should add (since at least part of the Claimant’s case seemed to have suggested, at least implicitly, that this was the case) that there is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary.”
Comment: The reiteration by Sharp J as to the duties imposed upon solicitors is a helpful summary of the position, and we would strongly endorse the statement at paragraph 77 of her judgment.
As a side note, we have reproduced the full extracts of the evidence of the consultant neurologist from the judgment partly because they would appear in our respectful submission to be rather curious. Whilst the decision in question was taken prior to the coming into force of the MCA 2005, the material underlying principles were essentially identical, and it would seem to us that it would have been possible to dissect the evidence of the neurologist forensically as failing to address the necessary issues. Sharp J does not seem to have considered these issues (or indeed whether the MCA 2005 applied). However, we would entirely share the sentiments the neurologist expressed about the need to ensure that assumptions are not made about those with dementia and about the need to ensure that their wishes are respected. We would also note the – related – exhortation to this end given to both of us in a recent directions hearing before Hedley J, where he bemoaned (without reference to the specific case before him) what he perceived as a seeming trend in the Court of Protection to place safety above all considerations.