High Court examines the issues of future care, double recovery and capacity
Celine Martin v Salford Royal NHS Foundation Trust 
In February 2010, the claimant suffered a brain injury and physical injuries whilst detained in hospital. Liability was established in favour of the claimant and the quantum trial took place in May 2021. There were various considerations in this case, but two of the key issues in dispute related to future care and capacity.
The aim of an award in damages is to put the injured person in a position they would have been in had it not been for the defendant’s negligence. The injured person is entitled to fair and reasonable, but not excessive, compensation.
At the time of the quantum trial, the claimant was in receipt of statutory ‘after care services’, comprising both mental health support and physical care pursuant to section 117 of the Mental Health Act 1983.
The claimant brought a claim for a privately funded care package amongst other heads of loss. The defendant was concerned over the significant prospect of double recovery given the existing state funded care package. The question of whether future care costs could be recovered at all was therefore addressed.
Judge Bird held that the claimant’s mental health needs represented a longstanding need which did not arise as a result of the defendant's negligence, but her physical needs did arise as a result of the defendant's negligence. As such, he approached damages by reference to physical needs only.
He found that the statutory care package was not adequate, and made an award for future care on a full life multiplier basis with the appointment of a case manager. He commented that:
I am satisfied that any possibility that Miss Martin might continue to take advantage of section 117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.
In summary, any continuation of the statutory care was not sufficient to make any adjustment to the award.
The claimant’s capacity to manage and control any money recovered by her was also in issue.
The Mental Capacity Act 2005 sets out the statutory framework against which an individual’s capacity is to be judged. It was accepted that the claimant had an impairment of the mind or brain. The issue in dispute was whether that impairment meant she was unable to make the relevant decision at the time it needed to be made.
Judge Bird turned to the expert neuropsychologists’ views. He preferred the evidence of the defendant’s expert, who assessed the claimant in ‘the midst of real life’ as opposed to a clinically controlled environment. It was found that although the claimant had a vulnerability to exploitation arising from her personality disorder, she had shown herself capable of retaining information, listening to and acting on advice (a specific example was when she turned to her father for guidance following a request from a friend to borrow £10,000). Judge Bird concluded that the claimant had capacity and was not entitled to the costs of a Deputy or Court of Protection Costs. An application to amend the schedule of loss to include provision for a personal injury trust was however allowed.
This case highlights that a state funded package does not necessarily prevent a finding of a full award for private care.
The small risk of double recovery is not always a barrier when it comes to assessing future care claims and it is important to take into account the notion that if the negligence makes a qualitative difference (i.e. the needs are no longer of the same type), this tends to favour a more holistic approach when assessing damages.
The court’s approach to capacity was also interesting, particularly as whilst the claimant demonstrated poor decision making and poor mental health, these alone did not equate to a finding of a lack of capacity. This case demonstrates the forensic and detailed approach taken by the courts when considering the issue of capacity and the need for experts to make a proper assessment in real life before removing the presumption of capacity.