Value for money

When the Mental Capacity Act 2005 (MCA) came into force at midnight on 1 October 2007, I ceased to be the master of the former Court of Protection (CoP) and became the senior judge of the CoP as we know it today. This was more than a change in job title. '¨It involved a fundamental change in the '¨job itself.

The master was the only judge of the former court, whereas the senior judge is one of several hundred members of the judiciary who are nominated to adjudicate in MCA cases. The master had inherited from the lord chancellor and, ultimately, from the Crown, an overall responsibility for all patients within the '¨court’s jurisdiction. 

As the master, I could act on my own initiative for the patient’s benefit without an application being made by anyone else. One of my functions was to approve all out-of-court personal injury settlements involving patients; and several times a week I would meet them and their families to discuss a wide range of issues relating to the management of their financial affairs. Consequently, I had a good idea of the going rates for care costs up and down the country.

Armand was born in 1953 and made a '¨killing from the sale of armaments. By the time he was fifty, his worldwide fortune exceeded £50m. His closest relative was a brother who had made a similar packet in '¨the same line of business. 

During a polo match in Argentina in March 2003, Armand fell from his horse and sustained multiple injuries, including a traumatic brain injury. He remained in hospital in Buenos Aires for more than a year but made no progress in terms of rehabilitation and recovery. If anything, he was regressing. 

So in August 2004, his brother made arrangements for him to be flown to London and admitted to a world renowned private hospital. A solicitor at Farrer & Co was appointed as his receiver under the Mental Health Act 1983.

The hospital was charging £15,000 a week (more than £780,000 a year) for his care. I knew that this was three times more expensive than the costliest care regime devised for any other patient under the CoP. As the master, I had a duty “to do all such things as appear necessary or expedient for the maintenance or other benefit of the patient”. 

I also had a statutory right to interview '¨a patient in private. I was concerned that '¨Armand was being treated as the goose that laid the golden eggs; and so I decided to see for myself exactly what value he was getting '¨for his money.

The visit took place on 7 January 2005. '¨Also present were the receiver, the brother and the hospital administrator. Armand slept throughout the attendance and, unfortunately, there was no chance of interviewing him '¨privately to assess his capacity or ascertain '¨his wishes and feelings.

I had expected his accommodation to be as stately as a suite at The Savoy in London, but it was no more sumptuous than a side room in a standard NHS hospital. 

The administrator was clearly apprehensive that I might staunch this steady stream of revenue by requiring the receiver to make alternative arrangements. But in the end, it was the brother who appreciated my concern about the potential for exploitation and seized the initiative. 

He arranged for one of Armand’s three houses in Chelsea to be specifically adapted '¨to meet his needs – and set up a first rate care regime at considerably less outlay than the sums being charged by the highly reputed private hospital.  

Denzil Lush is a retired senior judge at the Court of Protection

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