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Claiming the Cost of a Deputy to manage finances when incapacity is not caused by negligence

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    Rosie Blacker summarises a recent case where it was considered whether a claim for compensation for injuries suffered due to negligence could include a claim for the costs of a professional Deputy to manage the Claimant’s finances in circumstances when the Claimant’s incapacity was caused by the Claimant’s own actions rather than due to the Defendant’s negligence.

    By Rosie Blacker

The issue of capacity is complex and is governed by the Mental Capacity Act 2005.  However, put simply, it addresses whether an individual is able to make decisions about their own affairs, either with assistance or on their own. There are different tests to assess capacity, depending on the issue in question and decision to be made, for example, making a will, managing finances or making decisions about health and welfare.

When is a professional Deputy required?

If a Claimant lacks capacity to manage their own financial affairs, they may require the appointment of a Deputy to manage their finances.  A Deputy is appointed by the Court of Protection to manage the finances of someone who is unable to manage them for themselves, and must act in their best interests and make decisions on their behalf.

In many clinical negligence or personal injury claims, where a Claimant is deemed to lack capacity, which may, for example, be the case if the Claimant has suffered a brain injury, it is usually appropriate for a professional Deputy to be appointed to manage the Claimant’s finances, where this includes very large sums of compensation required to meet the Claimant’s lifelong needs.  A professional Deputy charges for their work and therefore there is a need to ensure that the costs associated with the professional Deputy are adequately provided for. Ordinarily, the costs would be claimed from the Defendant within the litigation if the capacity was caused by the negligence. However, the recent case of AB v Royal Devon & Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) has considered the issue of whether the costs for this can and should be claimed from the Defendant if the cause of the Claimant’s incapacity is their own illegal actions, rather than the Defendant’s negligence.

What was the case of AB v Royal Devon & Exeter NHS Foundation Trust about?

Briefly, by way of background, AB had a long history of drug abuse and an extensive criminal record.  He was admitted to the Defendant Hospital who negligently failed to diagnose him with a developing spinal abscess.  Their failure led to a spinal cord injury which left AB paraplegic, with significant care and other needs as a result.

After the start of the legal case, AB was found to lack capacity although it was agreed that this was not as a result of the abscess that he developed or his paralysis but was, instead, as a result of a combination of other factors, including his illegal drug use.  This meant that his incapacity was not caused by the negligence of the Defendant but was instead because of his own actions.

A settlement figure was agreed for compensation but, the issue in dispute was whether AB was able to claim the costs of a professional Deputy to manage his compensation, which was a large sum due to the severe nature of his injuries, given that his lack of capacity was not also caused by the Defendant’s negligence. It was also argued that, as a result of his incapacity, he would require additional care, above and beyond that which would ordinarily be expected for an individual with the injuries sustained.

The Defendant argued that they should not be penalised for the Claimant’s own illegal actions and suggested that, provided AB did not continue to take any illegal drugs, he should regain capacity approximately 1 year after his claim settled and would not then need a Deputy.

The Judgment

The Court found largely in favour of the Defendant in this case stating that the AB could not expect to recover additional sums that arose from his drug use rather than the Defendant’s negligence, such as additional care needs. The Judge in this case highlighted that this was an example of  “ex turpi causa non oritur actio” meaning “from a dishonorable cause an action does not arise” meaning that, a Claimant cannot expect to claim for his or her own illegal actions.

The Judge did award the Claimant the costs of a Deputy for the first year following settlement, on the basis that the first year period would involve complex decisions for the Claimant relating to purchase of accommodation, equipment etc, and he did not have capacity to make such decisions.  The Judge accepted that the Claimant had stopped taking drugs at this point and therefore the lack of capacity for this one year period was not due to illegality but a combination of other factors and the complexity of the decisions involved.  After the one year period, the decisions would be more manageable and the Claimant would have capacity to make the decisions himself (and therefore would not need a Deputy) unless he was using drugs again, in which case the Defendant should not be liable for the costs of the Deputy because the incapacity was caused by his use of illegal drugs.

The Judge also stated:

the tortfeasor [Defendant] must take his victim as he finds him.  If the Claimant had lacked capacity for other reasons then drug abuse, that complication would have been equally unforeseeable but the Defendant would have had no proper argument for excluding the consequential costs.”

This means that in cases where a Claimant lacked capacity before suffering injury due to negligence (unless due to illegality), and then requires a Deputy to manage their compensation from litigation, then the Defendant may be liable for the costs of the Deputy even though the lack of capacity was not caused by their negligence.  This highlights that Defendants must take their victims ‘as they find them’ and compensate Claimants for all costs arising from their negligence.

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