Share
A summary of key developments and insights relating to the personal injury discount rate in England and Wales, determining mental capacity in civil proceedings, current practice relating to eating disorder treatment and services, the Mental Health Bill, the Terminally Ill Adults (End of Life) Bill, causation and material contribution, and ‘lost years’ claims.
Personal injury discount rate (PIDR) in England and Wales
On 2 December 2024, the Lord Chancellor, Shabana Mahmood announced the personal injury discount rate (PIDR) in England and Wales will remain as a single rate, but has been adjusted from -0.25% to +0.5%. The change became effective as of 11 January 2025.
This increase in the PIDR follows the discount rate changes in Northern Ireland and Scotland which were also recently set at +0.5%.
We anticipate claimants with large future loss claims may well be advised to opt increasingly for smaller retained lump sums and more heads of loss by way of periodical payments, due to lower lump sum awards under a higher discount rate. Time will tell what balance will be struck between the forms of awards sought by claimants.
The increase from -0.25% to +0.5% and corresponding reduction in a claimant’s damages on settlement will enable public funds to be redirected to frontline services, including patient care in NHS claims.
Related item: A new personal injury discount rate of +0.5% in England and Wales
Contact: Christopher Malla
Civil Justice Council (CJC) publish final report on the procedure for determining mental capacity published
A final report following a CJC working group’s consultation on mental capacity was published on 11 November 2024. This proposes the creation of a ‘menu of options’ for the court to ensure an appropriate approach can be adopted in each case.
The report states: “the absence of any clear procedure or guidance means that procedures are developed on an ad-hoc basis, which is inefficient and leads to inconsistency of approach and that some “work arounds” that are employed may lack any proper basis.”
The report also notes: “the strong view of the working group, and the almost unanimous view of the judges and practitioners whom it consulted, that there should be clear provision and guidance on the procedure for the determination of issues of litigation capacity”.
The CJC plans to review progress on the recommendations “after enough time has passed for their effect to be assessed.”
Contacts: Daniel Freeman and Rob Tobin
Related items:
- Final report on the procedure for determining mental capacity published
- Better guidance and training key to any new approach to determine litigation capacity
Town hall discussion on the treatment of eating disorders
In collaboration with NHS Resolution, Kennedys hosted a town hall event in Cambridge to discuss the provision of eating disorder (ED) treatment services across the East of England. The event served as a council of experts, including psychiatrists, gastroenterologists, primary care providers and commissioners, to discuss current practice around ED treatment and to understand how services could be improved.
Further information on the key areas of discussion and next steps can be found here.
Related item: Town hall discussion on the treatment of eating disorders
Contact: Rob Tobin and Samantha Williams
The Mental Health Bill
Aimed at reforming and modernising the existing Mental Health Act 1983 (the Act), the Bill was introduced in the House of Lords on 6 November 2024. The Bill advances the majority of the recommendations for reform made in December 2018, following an independent review of the Act.
The Bill is currently at the Committee Stage, where it will undergo detailed review by the Lords, followed by a report stage and third reading before being passed to the House of Commons for further review. The government has indicated that implementation of the reforms will be phased and is anticipated to take several years due to the need for recruitment and training of both clinical and judicial staff.
Contact: Rob Tobin, Roger Davis and Giulia Monasterio
Related item: Mental Health Bill: briefing note
Terminally Ill Adults (End of Life) Bill
Introduced to Parliament on 16 October 2024 by way of the Private Members’ Bill ballot, the Bill was published on Monday 11 November 2024.
The Bill extends to England and Wales only. The proposals set out a model of assisted dying that would enable terminally ill adults who are mentally competent and meet other eligibility criteria to request and lawfully receive the provision of assistance to end their own life.
Among key measures within the Bill are those relating to eligibility requirements (including for the purposes of the legislation when a person will be considered to be terminally ill), initial discussions with registered medical practitioners and procedure, safeguards and protections.
Having undergone a second reading on 29 November, Members of Parliament are currently debating principles of the Bill during the Committee Stage in the House of Commons.
Related items: The Terminally Ill Adults (End of Life) Bill: briefing note
Contacts: Rob Tobin, Roger Davis and Giulia Monasterio
Causation and material contribution
Tuffin v University Hospitals Coventry and Warwickshire NHS Trust [20.12.2024]
The trust admitted to negligence having failed to give the claimant “appropriate chemical thromboprophylaxis (specifically an anticoagulant called Clexane)” following elective spinal surgery in 2015. It was agreed that as a result of which the claimant developed deep vein thrombosis (DVT) and then post thrombotic syndrome (PTS).
In 2018 the claimant underwent an above knee amputation of her left leg and alleged this was entirely a result of having developed the DVT and PTS, as a consequence of the trust’s negligence.
The trust’s case (with reference to paragraph 7 of the judgment) was that “the need for amputation and the symptoms which led the claimant to decide to undergo that surgery were the result of her developing complex regional pain syndrome (“CRPS”) and not as a result of their admitted negligence or the DVT.” The trust contended that the CRPS was most likely “triggered by the spinal surgery, was pre-existing or arose spontaneously”, asserting that the claimant would have had the amputation “whether or not she had developed a DVT”.
Difficulties in disentangling whether the cause of the amputation was the DVT or CRPS (if it was found by the court that she did have CRPS), were acknowledged by the claimant. As such, the claimant’s alternative case was that the DVT and PTS had materially contributed to her undergoing the amputation. The argument on that basis being that it was necessary for a combination of reasons, which included the DVT and PTS.
It was further submitted on behalf of the claimant that “on the balance of probabilities if the claimant had not developed a DVT and post thrombotic syndrome she would not have developed CRPS, if it is found that she did.”
Decision
The court found that whilst the failure to administer Clexane resulted in the DVT, on the balance of probabilities the expert evidence demonstrated that the symptoms which had led to amputation (which included severe allodynia and ulceration of the leg and toes) were not caused by the DVT or PTS. The court concluded that the claimant had developed CRPS, and it was this condition that had caused the symptoms which led to amputation, and further that the CRPS had not been caused by the DVT and PTS.
On the issue of material contribution the court observed that “before liability can be established the factor which is said to have made a material contribution must be shown to have added to the cause of the injury for which the claim is made.” The court concluded there was no expert opinion in support of a conclusion that the admitted negligence had made a material contribution to the allodynia and ulceration.
The court therefore held the trust was liable for the DVT and PTS, but not for the CRPS and not for the amputation.
Contact: Christopher Malla
Supreme Court to hear ‘leapfrog’ appeal on ‘lost years’ claims this week
CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023]
The Supreme Court is set to determine whether child claimants can recover damages for ‘lost years’ in the leapfrog appeal of CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] (CCC). The case challenges the long-standing precedent set in Croke v Wiseman [1982], which has historically prevented claims for lost future earnings where life expectancy of a child claimant is reduced; a distinction from adult claimants with reduced life expectancy.
A ruling in favour of the claimant would broaden the scope of claims brought against compensators.
The Supreme Court hearing is scheduled for 11 and 12 February 2025.
Related item: Supreme Court to hear ‘leapfrog’ appeal on ‘lost years’ claims this week
Contact: Christian Lowden
Healthcare
United Kingdom