State of play: case summaries

Mr Justice Hayden heard this case as an application under section 15 Mental Capacity Act 2005 (MCA). It was for a declaration determining whether it was in the best interests of Mrs N to receive life sustaining treatment by means of Clinically Assisted Nutrition and Hydration (CANH), currently provided through a Percutaneous Endoscopic Gastronomy (PEG) tube into her stomach.

The application was brought by Mrs N's child, M, who strongly believed this intervention was contrary to N's best interests. N was 68 at the time of the application and profoundly impaired both physically and cognitively, as a result of the progressive degenerative impact of multiple sclerosis.

N had suffered particularly badly from the disease for 23 years. The judge decided that in order to display his reasoning, it was necessary to give details of the progression of the disease and Mrs N's response to it, as well as evidence taken from all parties, including the various medical and care professionals, and from Mrs N's family.

Throughout the judgement, Mr Justice Hayden stressed that N remained at the centre of the decision making process. It was however concluded that she lacked capacity to participate in any aspect of the decision making process. The doctors had not agreed on her level of consciousness or her appreciation of anything around her.

Mr Justice Hayden considered the MCA 2005, the 2013 National Clinical Guidelines in Prolonged Disorders of Unconsciousness (PDOC) and the definition of a Minimally Conscious State, as outlined in the Aspen Neurobehavioral (sic) Workgroup in 2002, The Minimally Conscious State: Definition and Diagnostic Criteria.

The judge set out in full the identifying characteristics of the vegetative state (as it was then called) in the leading case regarding the 96th Hillsborough victim Tony Bland: Airedale NHS Trust v Bland ([1993 AC 789]. He also considered the case of Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2011] EWHC 2443) among many others.

A great deal of weight was given to Mrs N's past wishes and feelings (Section 4 Mental Capacity Act 2005). There was much discussion of N's background including her religion, her parents, her reaction to her illness and the restraints it placed on her, and her reaction to medical treatment generally. The judge praised the frankness with which the family had given evidence, even where it did not serve their view on the matter.

An order was made on 6 November 2015, concluding that Mrs N lacked the capacity to make decisions about her care and medical treatment, and that it was in her best interests for her to be transferred to a hospice. The CANH would also be withdrawn in accordance with National Clinical Guidelines, with pain relief, to make sure that Mrs N suffered the least distress and retained the greatest dignity following the withdrawal of nutrition and hydration.

The judge's conclusion should be read in full, ending in the words: 'I consider that in this case Mrs N's dignity and human freedom overwhelms further prolongation of life'.

See M v N (By her litigation friend, the Official Solicitor) and others [2015] EWCOP 76

 

Re AG

AG, born in 1985, was diagnosed with a moderate learning disability and as being on the Autistic Spectrum Disorder when she was aged 5. In 2007, when AG was 18, she was diagnosed as suffering from depression.  She also took a tenancy of a property, although she continued, for a time, to live with her mother, DG.

In 2011, allegations were made that DG had hit AG, while DG in turn reported that AG had attacked her. A safeguarding investigation ensued with an ‘inconclusive’ determination, but a plan for AG to return to her tenanted property with a 24-hour live-in care package.

Shortly after, allegations arose that AG was being physically and emotionally abused by DG, that AG was receiving inadequate care, that DG was mismanaging AG’s medication and that DG had, on occasions, verbally abused a careworker. AG had also supposedly assaulted a careworker on two occasions.

In November 2011, the care provider at the tenanted property terminated the care contract and AG moved to a new placement.  An urgent Deprivation of Liberty Safeguard authorisation was granted, followed by standard authorisation and on 24 November, an application was made to the Court of Protection.

Judge Rodgers reviewed the previous decisions at a hearing on November 2012, emphasising the difficulty of the situation as the local authority, the Official Solicitor and DG all took very different views. The new care plan involved AG moving into semi-independent living. 

A further hearing, held in 2013, reviewed AG’s move into supportive accommodation and, subject to AG’s wishes, the contact between AG and DG. Providing it remained in AG’s interests, frequency of contact would be maintained with a decrease in the level of supervision.

DG appealed this decision on four grounds: (a) the court had not conducted an adequate assessment of AG’s capacity; (b) the court had failed to make findings of fact in relation to the crucial events in 2011; (c) that AG’s move into new tenanted accommodation in September 2013 was a fait accompli; and (d) Article 8 of the Declaration of Human Rights was breached by the heavy supervision of contact between AG and her mother DG.

Sir James Munby’s reasoning on all four counts is worth considering.

He considered it would have been preferable to have a recent assessment of capacity, rather than relying on the reports from 2012, but that there was no new material at the 2013 hearing or now. He concluded there was no prejudice here.

The absence of fact finding seemed surprising given the severity of the allegations against DG, which formed the basis of the best interests decision for AG.  The judge referred to a similar case in respect of care proceedings in relation to a child.  The judge considered all of the circumstances of the case and that no injustice had been done, but in any event no challenge had been made at the time. 

Sir James Mumby considered the circumstances in which decisions had been made and whether a ‘fait accompli’ had arisen. The trial judge’s reasons for not changing the arrangements made were clearly articulated and securely based on evidence he was entitled to accept.

The final ground for appeal was also rejected, as the judgment was appropriately sensitive in balancing AG’s needs and wishes against DG’s understandable and legitimate aspirations.  Sir James Mumby concluded that the trial judge ‘was anxious to move forward quickly and progress contact with a view to both increasing its frequency and reducing the level of supervision. His approach in my judgement was entirely legitimate and properly respectful of both AG’s and DG’s Article 8 rights’, he concluded.

See Re AG [2015] EWCOP 78

 

Astle and Ors v CBRE Ltd

This case concerned the alleged professional negligence of two companies, CBRE Limited and Evans Randell Investment Management Limited. 

The claimants were various individuals who had invested in a project via a Jersey based trust, the trustee of which was Bedell Corporate Trustees Limited. The defendant companies applied in this case for summary judgement on the basis the claim has no real prospect of success at trial.

The Jersey trust held freehold property and was the limited partner in a Jersey limited partnership. The principal element of the project involved the purchase and development of five regional fire and rescue centres. 

The individuals were invited to invest on the basis of an Information Memorandum (IM). 

In order to buy and develop the fire and rescue centres, the trust and the partnership had to borrow from the bank. CBRE was engaged by the bank in 2006 to provide expert valuations, and these were summarised in the IM circulated to investors. 

In 2010, the development project was cancelled and the partnership defaulted on their loan. Meanwhile, the property crash in 2008 had caused a collapse in commercial property values. 

When the value of the development was considered for administration purposes, the values of the plots in question were significantly less than the values suggested in the IM. 

The defendants argued that the principle in South Australia Asset Management Corp v York Montague Ltd  [1996] UKHL 10 (SAAMCo) should be applied to this case. This established that where a person negligently provides inaccurate information, he would only be liable for the loss attributable to the inaccuracy, and not for the total loss that might have been suffered as a result of entering the transaction in reliance on that information. 

It was the defendants’ case that the losses were attributable to factors other than the overvaluation, namely the commercial property crash in 2008, and that their liability for the loss only extended to losses attributable to the inaccuracy.

William Trower QC acknowledged the general principle in SAAMCo and explained that the court needed to first establish whether duties of care were owed to the investors. If they were, the court would need to ascertain the basic loss before ascertaining how much of the loss falls within the duty of care.

It would be necessary to delve deeper into the circumstances of the case; both the claimant and defendant would be able to advance their arguments, therefore the matter needed to be properly considered at trial. Summary judgement was not permitted. 

The secondary issue concerned whether ERL were negligent in the issuing of loan notes. They were not non-qualifying corporate bonds (non-QCBs) for UK tax purposes, despite indications made by ERL that they would be (although the IM was silent on this point). 

Had they been non-QCBs, any losses made on them could have been offset against other gains the investors may have made. As it was, the judge concluded that there was a triable issue regarding whether there was a duty of care to ensure that the loan notes were non-QCBs.

The broad circumstances of this case are not unusual following the financial crisis of 2008. Where private client investors have lost money, it is not unusual to see claims brought, whether (as in this case) against those promoting the investment or providing valuations in connection with it, or against trustees in connection with investment decisions made in the context of trust structures. Practitioners and disgruntled investors will therefore follow closely the conclusions of this case when it is brought to trial. 

See Astle and Ors v CBRE Ltd [2015] EWHC 3189 (Ch)

 

Re A

This case considered the wider needs of a family with a severely disabled child. The child (A) suffered an anoxic brain injury shortly after birth, and several linked conditions including cerebral palsy and epilepsy. A’s condition was the subject of a clinical negligence claim, resulting in a settlement of £5m. A deputy was appointed to manage A’s property and affairs.

A’s parents dedicated their full attentions to caring for A, together with their other two children. As A’s parents could no longer work, part of A’s compensation fund was paid to support the family. 

The deputy also applied funds to support the family, including refurbishing the family home and the purchase of a holiday cottage. 

The deputy got to know the family very well and understood that they  were mutually dependant on each other, and on A's compensation fund. 

If A’s parents were to return to work to support the family, the cost of obtaining an external care package would be considerably more expensive and remove A from the family unit. 

During the course of the clinical negligence proceedings, A’s brother’s (B) focus at school understandably suffered. After the conclusion of the case, it improved and B showed good academic potential. Unfortunately, B did not secure a place at the local grammar school but instead was allocated a place at a secondary school, some distance from the family base. 

This posed a problem for A’s family as they would struggle to support B in his education, as well as caring for A. As a result, B was enrolled in a private fee paying school closer to the family home. 

The deputy deemed this a reasonable use of A’s compensation fund as it would allow her family to continue to support her care, while her brother could also receive support and uninterrupted education. 

An application was made to the court to ratify this decision. The court, for various reasons, did not action the application until over a year later. Hoping the court would agree with the approach, the deputy started to pay the school fees of £17,000 per year. 

When the matter was finally heard by the court, the official solicitor (acting as A’s litigation friend) suggested that the deputy had not acted in the best interests of A, and his duty should be to protect and preserve the compensation fund. 

Senior Judge Lush rejected the Official Solicitor’s argument as ‘unnecessarily cautious…and having the effect of stifling the family’s hope and dreams’, and granted the application. He also warned against viewing the deputy’s decision as wrong. 

The cost of the school fees in this case was very affordable (paid from income and representing 3 per cent of the overall fund) and importance was placed on the ‘mutual dependence of families’. 

A’s ‘interests, needs and well-being’ were viewed as being inextricably linked to that of her family. In fact, the expenditure on B’s education was intended to assist B in being able to break the cycle of dependency. 

Senior Judge Lush made it clear that caution should still be exercised when relying on judicial precedent in Court of Protection cases. He made clear that his judgment in this case was heavily circumstance dependant, and should not be used as an ‘imprimatur for the payment of siblings’ school fees from damage awards in other cases’. 

See Re A [2015] EWCOP 46

 

Jennifer Ridgway is an associate in the private client team at Michelmores

Elizabeth Eyre is an associate at Barlow Robbins

Jennifer and Elizabeth write regular case updates for Private Client Adviser