Who is a patient?

Each year approximately 15,000 applications are received by the Court of Protection for the grant of enduring powers of attorney from relatives who believe that a family member is "incapable of managing and administering his/her property and affairs". This year Court of Protection approval will be sought for 300-400 compromises of personal injury claims many individually involving several millions of pounds.

The Master of the Court has estimated that this year nearly £500,000,000 (half a billion pounds) will be received by way of damages in such claims. In such circumstances it is surprising that until the recent Court of Appeal decision in Masterman-Lister v Jewell and anor [2003] PIQR P 310 there was no reported authority on the meaning of "patient" or "person under a disability". Mr Masterman-Lister had suffered a serious head injury in 1980 when 17 years old. He compromised the action in 1987 and then 10 years later sought either to re-open the original claim on the basis that, no approval having been given, there was no valid compromise or to sue his original solicitors for negligent advice.

The question of his status lay at the heart of both issues for, if he was not a patient, not only could he not re-open the claim but also his professional negligence claim would be out of time under the 1980 Limitation Act. The Court of Appeal upheld the first instance decision of Wright J. and held that, at all relevant dates (principally 1987 and 1993), he was to be regarded, the undoubted effects of the head injury notwithstanding, as being of full capacity. The decision has attracted much adverse comment and is perceived by many practitioners as failing to give clear guidance and leaving head injury claimants vulnerable and unprotected. All (whether legal or medical) practising in the fields of personal injury and clinical negligence litigation will on occasions have experienced a sudden anxiety as to whether a particular claimant should not be (or, worse still, have been) regarded as a patient. The implications are substantial:

• Was the action properly constituted or did he require a litigation friend?
• Does the agreed compromise require court approval?
• What is to happen to the damages - can they properly be released to the claimant or must they go to the Court of Protection (and can the costs of their doing so be recovered)

Similarly all practitioners will have had the (often unhappy) experience of explaining to a (perhaps quite articulate) claimant that he will not be able to spend his damages as he chooses but will instead be dependent upon a Receiver appointed by the Court. The Court of Appeal pointed out that questions of capacity could arise in a variety of ways. Some (the making of wills, the giving of consent for medical treatment) had arisen earlier and had been the subject of previous judicial pronouncement. In the case before them the issue arose in three separate ways; firstly as to the possible need for a litigation friend and court approval, second as to the possible extension of the limitation period and third (and generally) as to Court of Protection involvement with the sums received.

They further pointed out that the test might vary as between the three situations; indeed the wording of CPR 21 (which governs the first) is different from that under section 94 of the Mental Health Act 1983 which founds the basis of the Court of Protection's jurisdiction. It was also noted (as many previously must have failed to note) that, with the advent of the CPR, the old test, which mirrored section 94 in its reference to "property and affairs", had been altered so that the focus was solely on "affairs" (apparently defined by the Court as the particular litigation under consideration).

The first instance hearing had occupied 15 days and 7 eminent medical witnesses gave evidence. The Court of Appeal judgment runs to 29 pages. It deserves careful reading. It is impossible in a short article to do justice to the Court's reasoning but, after attempting to summarise such, the practical implications need to be explored. Mr Masterman-Lister had suffered frontal lobe damage . He exhibited impaired memory, impulsiveness, emotional lability and poor executive functioning.

The label "dysexecutive syndrome" was applied by a number of the expert witnesses and accepted by the Court. In reaching its conclusion the Court accepted that the principal test was whether the claimant understood the need (on occasions) to take advice, was able to understand advice given him and to take (and thereafter communicate) decisions having weighed and evaluated such advice. It pointed out however that if a claimant had that capacity it mattered not that that the ultimate decision might not be perceived as wise - the focus must be on ability not outcome. Further the Court, like Wright J earlier, was at pains to stress that the Court's task (when considering capacity) was not to protect those potentially vulnerable to exploitation but rather to determine whether a claimant had the capacity to make rational decisions. Many cases will be straightforward and the practitioner will have little hesitation.

The problem will most frequently arise in the case of those with frontal lobe damage or perhaps in the case of the cerebral palsy infant whose cognitive (and perhaps communicative) skills have been affected but not grossly so. In the former little attention appears to have been given to the sufferer's characteristic variable performance (good days / bad days) which of itself should surely be a factor.

In the latter case particular problems will arise as the adviser / expert may have to consider what the position will be some years hence (on the claimant attaining his majority) so as to decide whether a (substantial) claim for future receivership costs can be maintained. One important aspect of the Court's decision must be emphasised. Though they were satisfied he had the capacity to make decisions as to the litigation they left open the question of whether he should be regarded as able to handle the proceeds of the litigation.

Kennedy L.J. highlighted the need to identify the specific issue (to which capacity was related) when he observed: " It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all "lay client" decisions up to and including one to settle but lacking capacity to decide (even with advice) how to administer a large award" Thus the Court expressly recognised that a person able to decide to accept (perhaps unwisely) to compromise (against advice, albeit advice he was able to understand and weigh) for £1,000,000 might well find he is told that he cannot spend it in the way (perhaps wholly sensible) he would choose. The "test" is different and the result might (albeit in a small number of cases) be different too.

Other aspects of the Court's decision must be stressed. Much emphasis was placed on the network of advice actually available to the claimant. This was regarded, particularly at first instance, as highly material. So a practitioner (and perhaps the expert) not only has to evaluate the claimant but also his family. It cannot however be assumed that the same advisers will always be present nor that the claimant's capacity would be revisited before he fell prey to exploitation. At present no medical evidence is required before a litigation friend is appointed (though such is necessary before the Court of Protection accepts a "referral"). It is proper to digress to note that the medical practitioner signing the appropriate form need not have any particular expertise in mental health / head injury matters.

The court observed this procedure (the paper exercise appointment of a litigation friend) is undesirable and pointed to the Human Rights implications of a decision with far reaching consequences arrived at without formal medical evidence being adjudicated upon and quite possibly without the claimant even being aware that such decision was being taken. Alterations to the Rules and (in the interim) more pro-active involvement by the District Bench were urged Finally and intriguingly the court questioned the underlying assumption that compromises by those (unlike Mr Masterman-Lister) who were later discovered to have lacked capacity were automatically liable to be set aside. The reasoning underlying these particular observations merits another article but it is something which all should be aware of.

Stuart Brown Q.C is head of Park Lane chambers at 19 Westgate, Leeds and a member of their large personal injury and clinical negligence teams. He specialises in claims of catastrophic injury arising from motor or industrial accidents or in the course of medical treatment.