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Capacity for Decisions in Life and Love: Part 2

Georgina Moorhead of Irwin Mitchell focuses on cohabitation and marriage in the second part of her special feature.

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The choice to cohabit

In PC v City of York Council [2013] EWCA Civ 478 the Court of Appeal was asked to determine whether or not PC (a woman with significant learning disabilities) had capacity to consent to cohabit with a man with a history of serious sexual offences, for which he had been imprisoned. The Court decided that she did have such capacity, even though doing so exposed her to a potentially dangerous situation.

In his concurring judgment, Lewison LJ observed that although he could understand the view of the professionals involved that PC cohabiting with her husband would be ‘extremely unwise’, “adult autonomy is such that people are free to make unwise decisions provided that they have the capacity to decide”.

This is a recurring theme in capacity assessments involving decisions regarding relationships, marriage and sex.

The Courts have consistently stressed that the Mental Capacity Act cannot be used as a protective paternalistic device for those making unwise decisions. As legal professionals our instinct is always to act in the best interests of the clients we represent but this cannot extend so far as to prevent them from making decisions which we may ourselves consider to be misjudged or unwise.

Capacity to marry

The test for capacity is time and issue- specific and therefore every area of capacity should be considered individually. For this reason, personal injury lawyers often find themselves representing Claimants who lack the capacity to manage their property and affairs (and so have Court appointed Deputies) but with capacity to marry.

The recent case of Mundell v Name 1 [2019] EWCOP 50 explored this issue, with the Court of Protection having to decide whether a man suffering from a brain injury had the capacity to marry, despite having a financial Deputy. The individual concerned had an estate worth approximately £1.5million following a personal injury claim.

The Judge held that capacity to marry does not involve a high or complex level of understanding but rather that a “rudimentary” understanding of the marriage contract would suffice.

The judgment in this case discussed the legal test for capacity to marry and decided that the assessment is an objective one with reference to the following principles:

  1. Marriage is status specific and not person specific;
  2. The wisdom of entering into a particular marriage is irrelevant;
  • The individual wishing to marry must understand the duties and responsibilities that attach to marriage; and
  1. The individual must not lack capacity to consent to sexual relations.

So, although the primary objective in all cases involving Articles 8 and 12 of the ECHR is to make a decision which serves a person’s best interests, when considering capacity to marry, the Court does not have jurisdiction to consider whether a marriage is in an individual’s best interests or vet a person’s choice of potential suitors.

Ultimately, capacity to marry is not a welfare test and does not involve consideration of whether the marriage itself is a wise decision or likely to last.

Issues regarding capacity to cohabit and to marry arose for a young man with a brain injury case who I recently represented.

Throughout the course of his claim, my client had had a number of relationships within which certain consistent patterns of behaviour were evident. His relationships quickly became very intense, with him inviting partners to live with him within a matter of weeks.

Once cohabiting, these relationships quickly became volatile and strained and my client was quick to propose the idea of marriage.

When his relationships later broke down, sometimes involving physical violence, we typically saw a period of ‘crisis’ in which he became heavily depressed, demonstrated risk taking, chaotic and violent behaviour and needed 24/7 support.

As set out above, it was not for my client’s legal team or the financial Deputy to assess the suitability of this individual’s choice of partners or relationships but there was a very apparent need to act in his best interests regarding the protection of his future financial settlement.

We organised and implemented brain injury support and training for my client’s intended partner to ensure that she better understood the impact and consequences of his brain injury and his resulting need for support.

I also worked alongside Irwin Mitchell’s Family Law team who were initially able to assist my client by preparing a Cohabitation Agreement as he was intending for his partner to move in to a property which he had purchased as part of his settlement. They were then also able to assist with the preparation of a pre- nuptial agreement.

Erin Sawyer, a senior associate in Irwin Mitchell’s family law team has explained the support she was able to offer in more detail:

“Cohabitation Agreements generally deal with ownership of property, any financial arrangements made while the couple are living together and how assets should be divided if the couple were to separate. At present there is no particular set of rules that automatically apply to unmarried couples that live together and in this client’s case, it was felt that it would be in his best interests to enter into a Cohabitation Agreement in order to protect his financial position on his cohabitation with his partner, in the event that they were to later separate. A capacity assessment confirming the ability of the client to give instructions in relation to the Cohabitation Agreement was required to enable us to prepare this on his behalf.

“The client has since become engaged to marry his partner, and so we are in the process of making arrangements to prepare a pre-nuptial agreement in order to protect his financial position in the event of a subsequent divorce, following the parties’ marriage. A separate capacity assessment as to the client’s capacity to give instructions for and enter into a pre-nuptial agreement will be required.

“This is because the issues that the client will need to understand and consider, in the context of negotiating a pre-nuptial agreement are separate and distinct from those relating to the Cohabitation Agreement, as well as being more complex, as it causes a change to a person’s legal status, and exposes the parties to financial claims that could be made in the event of separation and divorce.

“The protection of a pre-nuptial agreement is particularly important in this client’s circumstances, as funds that have been obtained by way of compensation are not automatically ring-fenced from claims on divorce, so a prenuptial agreement can help to avoid arguments in future by giving the parties’ certainty about how they intend to address their financial relationship in the event of a divorce.”

A holistic approach is always in the interests of the injured person. When representing clients with impaired capacity, we should be drawing on expertise not only from their case managers, therapists and medico- legal experts that we work with but also from complimentary legal services, including our Family Law, Public Law and Court of Protection colleagues.

Georgina Moorhead is a solicitor specialising in serious injuries and in particular those clients who suffer from an ABI. She is based in Irwin Mitchell’s Bristol office.

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Single or jointly instructed rehabilitation teams?

David Withers, of Irwin Mitchell, on which option is best for the injured person.

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In serious injury cases, an important consideration is whether the rehabilitation team should be instructed on a single (i.e. by the injured person) or joint (i.e. by the injured person and the insurer) basis. There are pros and cons to both options.

In the case of Wright – v – Sullivan [2006] 1 WLR 172, the Court of Appeal stated that a case manager should owe her duties to the injured person alone; there was a need to “win” their trust and co-operation of what was proposed; and the case manager, although informed by experts instructed by both parties, should make independent decisions as to what s/he believes is in the injured person’s best interests.

The Court of Appeal also confirmed that the role of a case manager at trial is as a witness of fact, not as an expert witness. This Judgment was given after a Defendant sought to persuade the High Court that it should be a condition of them making a further interim payment on account of damages (i.e. paying compensation up front to fund rehabilitation) that the case manager be jointly instructed.

The case is often relied upon by lawyers acting for injured people to justify the single instruction preference.

The advantages are that the case manager and the rehabilitation team can have privileged (confidential) discussions about the litigation with the lawyer; they can attend conferences with counsel and medico-legal experts; there is no blurring of the lines in terms of who the case manager and the rehabilitation team owe their duty to – the injured person; the injured person may feel able to be more open and transparent knowing that the case manager is not duty bound to report what is being said to the insurer.

There are not many disadvantages to injured people and their families. If there is a contributory negligence apportionment, a jointly instructed case manager and rehabilitation team will often be paid at 100% by the insurer.

This is clearly very advantageous to the injured person as they do not have to worry about spending at 100% but only recovering what the liability apportionment allows them to. It can also prevent a positive and collaborative working relationship between the parties, particularly if there is a feeling of distrust.

A jointly instructed case manager and rehabilitation team can work well if the parties have mutual respect, trust, and transparency. If there is a willingness to maximise the rehabilitation and then quantify the case when there is a prognosis, there can be advantages to both sides.

There is the advantage that the Defendant team can “feed into” the rehabilitation by letting the case manager know what the medico-legal experts that they have instructed have recommended. This has the potential to narrow the issues between the parties when it comes to settlement.

The process can run more smoothly generally. There is a less of an antagonistic feel to the litigation. In enables both sides to be better informed about the rehabilitation and care requirement, which is also likely to lead to a swifter settlement once the final prognosis is known.

There is also a hybrid model which is the author’s preference, subject to considerations about contributory negligence which is set out above. The case manager is selected and instructed on a single basis by the injured person.

They work solely for them. However, there is respect, trust and collaboration between the lawyers. The Defendant team are allowed access to the records at frequent and agreed intervals.

They are allowed to attend the MDT meetings to ask questions. Both sides have joint discussions with the case manager to share ideas and discuss progress, where problems, if there are any, can be identified at an early stage and dealt with which is in both parties’ interests.

The medico-legal experts can have discussions with the case manager if the parties agree to ensure that all recommendations are “on the table” for consideration. There is agreement that the Defendant team will not try to resolve the case until the injured person’s final prognosis is known.

This way of working appreciates that the Defendant team would benefit from being kept up to speed about the rehabilitation to understand the likely claim that they are going to be asked to meet.

However, most importantly, it ensures that the injured person selects the case manager and instructs them. The case manager’s duty is solely to the injured person. It is the injured person alone to ensure that a rehabilitation and care package best meets their needs.

A case manager is instructed because of their expertise. The medico-legal experts are instructed to provide independent views on the condition and prognosis including future rehabilitation and care need.

It is right that the injured person be provided with the autonomy of implementing a package that best meets his or her needs without undue interference. If an injured person implements a successful rehabilitation and care team, they will recover the cost so long as the package is reasonable.

It does not have to be the cheapest; it just has to be a reasonable choice.

Although of course each case has to be considered on its facts, there can often be a sensible way forward if there is collaboration between the lawyers and a commitment to find common ground particularly at the early stage when both parties want the injured person to maximise their recovery.

David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma. 

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Organic brain injury or psychological trauma?

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In a serious injury case, it is common for there to be a dispute about whether an individual has sustained a traumatic brain injury with likely subsequent lifelong problems or whether they have suffered from a psychological reaction which, with appropriate treatment, could result in a full recovery.

This is an important argument because it can significantly affect the rehabilitation that is required to optimise recovery and the level of compensation awarded. The issue tends to arise when there has been a closed head injury (i.e. an injury which does not penetrate the skull).

The starting point is to review the notes and records and take a detailed history from the family member and, if possible, the injured person. There are three primary ways to establish, on the face of it, whether someone has sustained a brain injury:

  • Radiology – if there is evidence of lesions on a CT and / or MRI scan, it is fairly conclusive evidence of a traumatic brain injury. A CT and MRI scans will show macroscopic damage, although not necessarily microscopic damage. Although an abnormal scan provides positive evidence of a brain injury, a normal scan does not necessarily rule out that one has been sustained.
  • Amnesia – if the injured person does not have a clear and continuous recollection of events before (retrograde amnesia) or after (post-traumatic amnesia) an accident, it is indicative of a brain injury. Retrograde amnesia is of less importance as it does not correlate as well with severity and outcome as measures of post-traumatic amnesia do.
  • The depth of the coma – if there has been a loss of consciousness, this is usually indicative of a brain injury. This tends to be measured by assessing the Glasgow Coma Score (“GCS”). Headway, on their website, describes GCS as “A score given to head injured patients starting immediately after the head injury to measure the degree of unconsciousness. A score of 7 or less indicates that the person is in a coma. A maximum score of 15 indicates that the person can speak coherently, obey commands to move, and can spontaneously open their eyes”.

The Mayo system is probably the most frequently used particularly in the context of litigation. This system to measure the likelihood and severity of brain injury was developed in 2007. A brain injury is diagnosed and classified as moderate to severe if one or more of the following criteria exist:

  1. death due to the brain injury;
  2. loss of consciousness of 30 minutes or more;
  3. PTA of 24 hours or more;
  4. worst GCS in the first 24 hours of 12 or less (unless explainable by other factors);
  5. one or more of the following: intracerebral haematoma, subdural haematoma, epidural haematoma, cerebral contusion, haemorrhagic contusion, penetrating TBI, subarachnoid haemorrhage or brain stem injury.

From a litigation perspective, if a brain injury is suspected but not clear-cut, my personal approach is to instruct a Consultant Neurologist quite early on, ensuring that they have the context from the family members such as whether there are cognitive deficits and / or behavioural problems or other emotional disturbance. If the neurologist rules out a brain injury, that is the end of the investigation.

The rehabilitation can then focus specifically on treating the psychological disturbance. If the neurologist opines that there probably has been a brain injury on the balance of probabilities, he or she will, in all likelihood, suggest that a Neuropsychologist assesses.

The Neuropsychologist can ascertain whether there is any cognitive deficits arising such as, for example, impacted memory, reduced ability to plan and concentrate, difficulty multi-tasking).

At this point, the recommendation is usually to implement some neuro-rehabilitation; this may, however, have a focus on treating the psychological component.

It is important to “unpick” what symptoms are caused by the brain injury and what symptoms are caused by the psychological disturbance.

The rehabilitation programme should focus on both components. In reality, a lot of symptoms have a dual cause. It is important to ensure that the psychological disturbance is treated.

If done successfully and there are still clear cognitive deficits and / or behavioural and emotional disturbance, it is clear evidence that the organic brain injury is causing those problems and that they are likely to be lifelong.

It is much more difficult to prove that issues are caused by a brain injury if recommendations to treat psychological disturbance, such as post-traumatic stress disorder, have not been implemented appropriately or fully. If that is the case, there is always the argument that the symptoms may improve when the recommended and required rehabilitation is implemented.

There have been a number of cases where the Courts have had to determine disputes between parties about whether the injured person has sustained a traumatic brain injury. In the case of Siegel – v – Pummell [2014] EWHC 4309 (QB), the High Court specifically rejected the contention that because the Claimant had not suffered from a loss of consciousness, had a normal Glasgow Coma Score and did not have any lesions on a CT and MRI scans, he had not suffered from a diffuse axonal brain injury. The Claimant had proven that he continued to have a “cluster of symptoms”.

The Court considered the acute hospital notes, the mechanism of injury including whether there would have been a rapid acceleration / deceleration of the head (even without any blow to the head) and whether the cluster of symptoms is consistent with a Claimant having sustained a traumatic brain injury.

If the investigation is done properly and in a collaborative way, it can be determined relatively quickly whether there is an organic brain injury or not.

This takes effective communication, selecting the right experts at the right time, and collaboration with the Defendant team and all other stakeholders.

In the future, Diffusion Tensor Imaging, very sensitive MRI scans which can identify microstructural changes or differences, may be able to identify white matter damage which may narrow the scope for argument on these types of cases.

David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma. 

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Capacity for decisions in life and love: part 1

Under Article 8 of the Human Rights Act we all have a right to enjoy a private and family life. The need for relationships and intimacy is an essential part of most of our lives but for individuals living with an acquired brain injury, this can be far more complex, as Georgina Moorhead of Irwin Mitchell explains.

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Dating and Sexual Relationships

The law states that people have capacity to engage in sexual relationships if they understand the physical context. In other words, they should understand the basic mechanics of the acts involved, the risk of pregnancy or sexually transmitted disease and the ability of either party to say no at any stage.

In the context of serious injury litigation, we commonly encounter Claimants who have a strong desire for romantic relationships.

Unfortunately, the cognitive issues they face, which often include difficulty concentrating, poor memory, poor language skills and reduced problem- solving abilities, in addition to disinhibition, impulsivity and impaired reading of social cues, can present significant challenges in both dating and forming romantic relationships.

Cognitive impairments can also impact an individual’s ability to fully comprehend issues such as safe sex and consent.

For professionals involved in such cases, it is crucial to respond by sourcing appropriate support in order to maximise an individual’s capacity to engage in dating safely, whether in person or online.

I recently represented a young man affected by many of these issues. He had a strong desire to be in a relationship but exhibited impulsive behaviour which frequently overrode his ability to exercise caution or appropriate dating behaviour.

His lack of capacity manifested in him having difficulty understanding and utilising appropriate online communication, inappropriate and excessive use of dating sites and accessing inappropriate websites. He was also unable to consistently read social cues and adapt his behaviour/ make decisions accordingly. For all these reasons, the Claimant was considered to be at risk online.

We therefore arranged a specific capacity assessment, following which protective measures were introduced and input was arranged to help monitor and manage my client’s risk from online activity.

He also benefited from input from brain injury specialist support workers with whom he was able to openly discuss his online activity and increase his understanding of the need for him to exercise caution. Ultimately, he had capacity to date and enter romantic relationships but there was a very clear need for support to enable him to do so safely.

In this case, I worked closely with Irwin Mitchell’s Court of Protection team, who appointed a property and financial Deputy for my client.

Katie Strong, a partner in Irwin Mitchell’s Court of Protection team explains that: “Capacity is decision specific and so over time, the level of support and supervision will be kept under review and reduced in the event my client regains capacity in this area.  As well as the specialist support team, we have instructed a neuropsychologist to monitor the client’s capacity and provide support to him as well as his support team in managing the risks.”  

Considerations in Litigation

We are all familiar with the presumption of capacity under the Mental Capacity Act 2005. In serious injury litigation involving brain injured individuals in particular, complex issues often arise when we are acting for clients who have been placed in a vulnerable position (through no fault of their own) and their ability to make reasoned, informed decisions simultaneously reduced.

Such cases inevitably prompt legal professionals to think ‘outside the box’. For example, does an individual require subscriptions for dating agency sites, psychological support or professional IT support to assist in the management of online risk? Does the Case Manager need to act as an intermediary with dating agencies? Is there a role for support workers? There is no ‘one size fits all’ approach and, as always, cases should mould around the individual involved and their particular circumstances.

For example, if a client demonstrates a desire to be in a long- term relationship and to have children, the legal team should consider obtaining expert evidence which addresses the need for any future support that may be required with childcare, both in the context of a successful relationship and relationship breakdown.

An assessment of how well they may manage the end of a relationship and cope with the emotional and psychological challenge may also impact their future care needs, and we may need to prompt our care experts to include additional future contingency care during such periods.

Ultimately, the Courts have consistently held that the requisite standard for capacity to consent to sexual relationships and marriage is deliberately not a high one. We cannot prevent our clients from making decisions we consider to be unwise but we do have several tools at our disposal to protect and support whatever capacity they do have. Our role is to ensure that our client is able to maximise their independence so far as possible.

Read part 2 of this article series – exploring issues regarding capacity to cohabit and marry in more depth.

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