Mental Capacity Case


Bodey J.
[2012] EWHC 1990

Summary: This decision of Mr Justice Bodey concerned the interface between welfare proceedings in the Court of Protection and concurrent personal injury proceedings. SK had suffered a brain injury in an accident and was represented in a personal injury claim through his brother CK as litigation friend. Part of his claim related to the future costs of his care. At the same time, welfare proceedings were underway in the Court of Protection, concerning the validity of SK's marriage and his care and place of residence, where the Official Solicitor acted as his litigation friend. The expert in neuro-rehabilitation instructed for the purposes of the personal injury claim had recommended different arrangements for SK's care and residence than the joint expert in the Court of Protection proceedings. SK's wife wished to put forward the recommendations of the 'personal injury expert', but the local authority and PCT had already refused to commission that option because they considered it would not meet SK's assessed needs, and was likely to be more expensive.

Various reports from the 'personal injury expert' had already been disclosed to the parties in the Court of Protection proceedings, but not the reports obtained by the Defendants in the personal injury proceedings.

An application was issued by the solicitors acting for SK in his personal injury claim which sought, in various alternative formulations, to allow them to represent SK in the Court of Protection to put forward the views of the 'personal injury expert'. As a result, the Defendants in the personal injury proceedings also applied to have the two sets of proceedings consolidated, so that the court would have the benefit of all the relevant expert views, and so that the Defendants would not effectively be prevented from arguing subsequently that the option favoured by the 'personal injury expert' was unreasonable, in the event that the Court of Protection declared that option to be in SK's best interests.

The Official Solicitor opposed both applications, arguing that SK could only have one voice in the Court of Protection, and that Defendant insurance companies had no right to be involved in best interests decisions.

At the hearing, the original application was altered so that it became an application for SK's brother CK (his litigation friend in the personal injury proceedings) to be joined as a party. That application was not opposed by the Official Solicitor.

The court determined that CK should be joined as a party, and refused the Defendants permission to play any role in the best interests decision, while directing that there should be a joint meeting between the single joint expert in the Court of Protection proceedings and the 'personal injury expert'. The court held:

(a) The tests to be decided in each court were different – 'best interests' was not the same as whether a particular form of care was a 'reasonable need'. (b) The Defendants in the personal injury proceedings, and the Queen's Bench Division judge, would not be bound by any declaration made in the Court of Protection. (c) The Defendants did not have 'sufficient interest' in the words of COP Rule 75 to be joined as a party. Their financial liability would not be determined by the Court of Protection proceedings. A commercial interest in the outcome was not enough.

The judge also noted that where possible and unless otherwise contra-indicated, it would generally make sense to have the same litigation friend in concurrent Court of Protection and personal injury proceedings to avoid some of the problems that had arisen in this case, where two different representatives of SK had adopted different positions on the same issue. The earlier applications made by SK's solicitors in the personal injury proceedings would have been refused, since it was not possible for SK himself to have two sets of representatives in one set of proceedings.

Comment: This decision is likely to be of interest to personal injury solicitors involved in cases where the claimant lacks capacity and where best interests decisions need to be taken which may overlap with decisions about the quantum of future care. It is of interest for the general statement of principle that Defendants who have a commercial interest in best interests decisions are not thereby able to satisfy the test of sufficient interest to be joined as a party to Court of Protection proceedings. No doubt Defendant insurance companies will be sceptical about the suggestion that a declaration of the Court of Protection that option X is in P's best interests does not close the door to an argument that option X is not a reasonable need. On the other hand, as the judge observed, there are plenty of public policy arguments against allowing those with a purely commercial interest a role in Court of Protection proceedings and best interests decision making generally.