AB -v- Royal Devon and Exeter NHS Trust – The consequences of contributing to your own incapacity

This case examined various issues, including a Claimant’s ability to claim the past and future professional Deputyship costs, where a significant contributing factor to the individual’s incapacity was long-term drug abuse.

The Claimant had suffered emotional and physical abuse at home as a very young child.  By the age of 15, he was involved in wide-ranging substance abuse, including Class A drugs.  At the time of the trial, the Claimant was aged 50 and had a complex history of substance abuse throughout his life, despite at the time of trial, being a non-user.

The medical injury occurred when the Claimant was aged 43 and was a result of a misdiagnosed spinal abscess, where the loss of motor power in the Claimant’s legs had been missed and not acted upon in time by his local NHS Trust.  The Claimant was paraplegic as a result.

Liability was compromised on the basis of 60% although the quantification of the claim was complicated in light of the issue of the Claimant’s capacity, which if proved, would have had a significant impact on the overall value of his claim.

The Defendant, in this case, argued that even if the Claimant’s loss of capacity could be demonstrated, it could not be attributed to the medical negligence but rather, would be attributable to the Claimant’s historic use of drugs.  The Defendant stated that any losses arising from incapacity (such as the cost of a professional Deputy) should be irrecoverable due to the ex turpo causa non oritur actio – the policy that one should not be able to claim a benefit from a dishonourable cause.

It was accepted by the Court that the Claimant had long-standing psychological problems pre-dating the injury.  It was stated that the Claimant suffered from a personality disorder, was prone to acting impulsively, had a complex history of drug abuse and a difficult childhood which cumulatively impacted on his cognitive function in some way.  It was stated that the Claimant had suffered serious psychological consequences from his injury which could not be ignored or trivialised, despite the various pre-existing conditions.

It was accepted by the Court that the Claimant had the capacity to litigate at the time of the trial, because he had abstained from the use of hard drugs for a sufficiently long period of time to enable him to engage in the litigation process.

The issue of whether the Claimant would retain the capacity to manage his award into the future was deemed to be a more complex matter than giving instructions and evidence in the course of the proceedings and trial.

Under the Mental Capacity Act 2005, a person lacks capacity to manage their property and affairs if it can be established that “at the material time” he or she is unable to make a decision for himself, because of an impairment of or a disturbance in the functioning of his mind or brain (section 2).

On the evidence, the Court formed the view that at the “material time” of the trial, the Claimant had litigation capacity.  The Court then turned to the next “material time” which was the period following the determination of the claim which would require attention to be turned to the implementation of a large award, purchasing and adapting a property, instituting a care regime, purchasing equipment, and transport.

It was decided that in respect of the period until those initial decisions and arrangements were made, the Claimant would be deemed to be under a disability irrespective of his historic drug abuse.  The arrangements were “major purchases, disposals of money and difficult choices covering the range of needs and services derived from the Claimant’s injury”.  It was estimated that those arrangements would take 1 year to complete.

After that post-award period, the Court indicated that the decisions facing the Claimant would be less complex, citing examples such as staff changes and equipment replacement, as opposed to major life choices, and as such, indicated that at that “material time” the Claimant would likely retain capacity to manage his affairs, in the absence of using drugs.  It was further stated that if the Claimant were to lose capacity after this period of time, it would be as a result of a reversion to drug use as opposed to any consequences derived from his injury.

It was held that:

• The period when the Claimant most obviously lacked capacity (prior to trial) derived directly from his drug abuse, although other contributory factors were also present;
•  All costs associated with a lack of capacity before the trial (Period A) were excluded from the award – ex turpo causa;
• The Court identified a period of 1 year from the award as presenting the Claimant with particularly complex and difficult decision making, where the Court accepted that the Claimant would lack capacity, irrespective of whether he was using a drug user at that point in time or not (Period B);
• At the conclusion of Period B, it was held that if the Claimant were to lack the capacity for the more manageable decisions he would then likely face, it would because he reverted to abuse of illegal drugs (Period C).
• The Court declined to make any award in respect of the costs arising from the Claimant’s lack of capacity for 1 year (in Period C onwards) following the release of the damages award in this case.
• The case excluded all future professional Deputyship costs and all past costs incurred to the date of trial.  That resulted in a loss to the Claimant of £54,672 for past costs and additionally, a loss of future annual Deputyship costs of £12,138 claimed in the schedule.
• The Court did allow the cost of a Statutory Will application for the Claimant indicating that it would be “unreasonable to leave the Claimant without a Will during this period”.
• One year’s purchase of the Deputyship claim was awarded in the sum of £39,023.

This is an interesting case for personal injury practitioners when assessing the claims for those lacking capacity as a result of drug abuse.  The impact on the potential value of the case was significant.  Irrespective of whether Deputyship costs are recovered, the Court of Protection is still likely to appoint a Deputy where it can be shown that a person lacks capacity – the reason for the incapacity, such as drug abuse, is unlikely to be relevant.  However, the on-going costs of a professional Deputy and whether or not such costs were included as part of a damages award might be one factor to consider when recommending professional input and at what level.

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