James Sedge (by His Mother and Litigation Friend Yolanda Skinner) v Christopher Prime
| Jurisdiction | England & Wales |
| Judge | John Leighton Williams Qc |
| Judgment Date | 25 April 2012 |
| Neutral Citation | [2012] EWHC 3460 (QB) |
| Court | Queen's Bench Division |
| Date | 25 April 2012 |
| Docket Number | Case No: HQ08X00169 |
[2012] EWHC 3460 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
John Leighton Williams QC
Case No: HQ08X00169
Introduction
This is an application for an interim payment of £300,000 to enable the Claimant to move from the "Little Oyster" residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely.
Background
The Claimant is now 26 years old (DoB 3 rd May 1985). On 2 nd June 2006 he sustained serious brain injuries when, as he was crossing Sheerness High Street, he was struck by a motor car driven by the Defendant. He was admitted to the Medway Hospital but promptly transferred to King's' College Hospital, London where, after treatment, he was transferred back to Medway Hospital and in due course from there to the Royal Hospital for Disability in Putney from which he was discharged on 22 nd October 2007 to the "Little Oyster" where he has lived ever since. He was readmitted to King's College Hospital for treatment for hydrocephalus in April 2008 and a cranioplasty in December 2008. His life expectancy is not agreed but may be into his seventies. His care at the "Little Oyster" has been funded by the local Primary Care Trust ("PCT").
His immediate injuries were a parietal fracture and acute subdural haematoma. The long term consequences have been that he cannot stand or walk, has no use of his right arm, is doubly incontinent and cannot speak. He is confined to a wheelchair. He can feed himself but with difficulty and without much control. He suffers from reasonably well controlled epilepsy. His sight appears preserved and his hearing intact. Happily, he is not aggressive and does not display behavioural problems. He needs 24 hour care.
His cognitive and intellectual functions are significantly limited but how limited is not yet entirely clear. From an early stage he has used a thumbs up or down to indicate yes or no but not reliably so. He has also enjoyed social interaction but with very limited communication. The general view at "Little Oyster" appears to have been that his understanding and abilities were very limited indeed.
The expert medical evidence is unanimous that he has been physically well cared for at "Little Oyster". He has his own en suite first floor room, which overlooks the Thames estuary, and a television set. He does not display problems, is not difficult to care for and is therefore popular with the staff. There is no evidence that he has demonstrated unhappiness or frustration at being there. But whilst the PCT funded his care they have provided no or only very limited therapy for him. Save for occasional trips out organised by the home and visits from his family, his life appears to have been largely a passive one.
Prior to the accident, when employed, he worked as a scaffolder. He fathered a child but soon split up with the mother and then assaulted her new partner for which he was sentenced to 3 months imprisonment. At times he drank to excess, got into fights and took drugs. His anti-social behaviour resulted in convictions. In short, his life style was a disturbed one. The Claimant's father left his mother when the Claimant was aged 3 and has had very limited contact with the Claimant. His mother, who has shown an interest in his continuing welfare, has had problems of her own. Dr Greenwood in his report of 4 th July 2009 considered that both the Claimant's dependency on care and "his fractured social background" meant that he would be unable to return to being cared for in the family home.
In his report dated 4 th July 2009 Dr Greenwood suggested the Claimant would profit from going home for days "to be in the family circle, vary his social interaction and widen his activities", from having a wheelchair adapted vehicle with which the family could take him on outings, and that intensive speech and language therapy ("SALT") would improve the reliability of his gestural communication. However, at that time funding was not available.
The procedural history
Proceedings were issued on 19 th May 2009. The Defendant contested liability. Following a trial in January 2011 he was held liable to the Claimant but with a finding of 25% contributory negligence.
On 8 th April 2011, following a contested hearing, Master Kay ordered an interim payment of £175,000 "to be applied for the Claimant's benefit and in accordance with the indications given by Richard Crabtree ( the Claimant's solicitor) in his evidence in support of the application". I have not seen Mr Crabtree's evidence but I am told the interim payment was made to enable a case manager and support worker to be appointed and various needs to be met.
Meanwhile in February 2011 application had been made to The Court of Protection under the provisions of the Mental Capacity Act 2005 for the appointment of a deputy for property and affairs (often described as a "financial deputy"). On 13 th May 2011 Ms Molloy was appointed the Claimant's professional financial deputy.
Receipt of the interim payment made it possible to appoint a case manager, Ms Susanne Frowd, in April 2011. She in turn arranged the appointment of a brain injury support worker, Mr Tokarek to assist the Claimant, for SALT from Ms Emily Smith and physiotherapy. Mr Tokarek has worked with the Claimant since October and Ms Smith since November 2011. An electric wheelchair has also been purchased. Ms Frowd also spent about 6 months finding a bungalow, 52 Holtwood Avenue, Aylesford, Maidstone to accommodate the Claimant which was taken on an annual rent of £13,200 in December 2011. £15,829.63 has been spent extending/adapting the premises.
The present application was issued on 31 st January 2012.
On 8 th April 2011 Master Kay also gave directions which included exchange of expert evidence. He ordered the parties to serve any neuropsychiatric evidence they wished to rely on, the Defendant by 10 th January 2012 and the Claimant by 13 th March 2012. All save the neuropsychiatric expert evidence, has been exchanged. The Defendant has served neuropsychiatric evidence from Dr Jacobson. The Claimant has not served any such evidence. Mr Crabtree says that an expert neuropsychiatrist he instructed in October 2011 said in November 2011 that he was unable to act and Dr Fleminger whom he then instructed has said he will not be able to visit the Claimant until September 2012. He does not explain why it took him until October 2011 to instruct the expert. On 1 st February 2012 at a CMC Master Kay ordered that application for an interim payment be issued by 3 rd February and heard by a High Court or Deputy High Court Judge and that there be a further CMC on 24 th May 2012 unless I give further directions at the present hearing.
The Claimant's affairs are now subject to the provisions of the Mental Capacity Act 2005 and therefore the supervision of the Court of Protection. Section 1(5) of the Act provides that acts done and decisions made under the Act for the Claimant must be done or made in his "best interests". Section 16 of the Act enables the Court of Protection to appoint deputies to make decisions in relation to the (a) personal welfare and (b) property and affairs of a person lacking capacity. Ms Molloy has been appointed the Claimant's financial deputy but no deputy has been appointed to make decisions on his behalf with regard to his personal welfare. Section 16(4) (a) provides that when considering whether to appoint a deputy "a decision by the court is to be preferred to the appointment of a deputy to make a decision". The Court of Protection has not considered it necessary to appoint a welfare deputy. Decisions regarding his welfare have necessarily to be left to those who care for and support him.
In these circumstances protection for the Claimant's personal welfare exists in the "best interests" requirement of Section 1(5). Requirements needing to be met for best interest decisions are set out in Section 4 of the Act, the relevant parts of which provide:
" Best interests
"…………………………………
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
…………..
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
…………….
(11) "Relevant circumstances" are those—
(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant.
"Best interests" is not defined in the Act but Chapter 5 of The Mental Capacity Act Code of Practice...
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