England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th March 2002

Mr Justice Wright:

1. In these two joined actions, M.J.M-L (M.) is the claimant, and Mr. Jewell and Home Counties Dairies are the defendants in an action which was originally commenced as long ago as December 1980, in relation to a road traffic accident in which the claimant was involved and which occurred on 9th September 1980. In the second action the defendants Brutton & Co., are a firm of solicitors who acted on behalf of the claimant in pursuing the first action down to and including the date of a purported settlement of that action on the 17th September 1987.
2. On the 29th March 2000 Master Murray, for reasons which will become apparent as the narrative in this judgment progresses, ordered that two issues, the same in each case, should be tried as preliminary issues. The terms of each issue are:-

"Whether the claimant has been a patient within the meaning of RSC Order 80 and/or Part 21 of the CPR at any time since the 8th September 1980 and, if so, what are the period or periods when the claimant has been a patient between the 8th September 1980 to date"

The History

3. M. was born on the 24th July 1963. At about half past seven in the morning of the 9th September 1980, when aged 17, he was riding a motorcycle along the B3397 Hamble Lane in Southampton on his way to his work as an engineering apprentice at British Aerospace when he was involved in a very serious collision with a milk float driven by Mr. Jewell in his capacity as an employee of Home Counties Dairies. M. was riding southwards; the milk float was travelling northwards and Mr. Jewell attempted to turn right across the path of the claimant's oncoming motorcycle. There was a collision. What might otherwise have been a relatively straightforward issue of liability was complicated by two factors; first, that immediately before the collision, M. who at the material time was riding around a sweeping left-hand bend in the road, was overtaking a slower moving vehicle at a time when Mr. Jewell's view of him might, until a late stage, have been obscured; and second, that his speed was such that his motorcycle left a 43 feet 9 inch skid mark upon the road before coming into very heavy collision with the milk float.
4. M. suffered very serious injuries indeed. He had a very severe closed head injury which caused cerebral contusion and rendered him unconscious for approximately two weeks. It is possible that in the first 24 hours after the accident he suffered a hypoxic episode, but thereafter his neurological condition improved and he was eventually released from intensive care to the wards after about three weeks. His post traumatic amnesia is of approximately 2 months duration, and it is common ground on all sides that this young man suffered severe brain damage. Additionally, there was bilateral avulsion of the roots of the nerves running out of the spinal cord at C5/6/7/8 levels resulting in a bilateral brachial plexus lesion which has M. with very significant weakness and loss of function in both arms and persistent pain, especially in the left. He had multiple fractures of three of his four limbs with rupture of the ligaments of the left knee, and gross fracturing and displacement of his nasal septum.
5. He was in hospital until shortly before Christmas 1980, but was able to get back to work at British Aerospace on 22nd June 1981, some 9 months after the accident. However, the impact of the accident upon him in both mental and physical terms was such that he was able only to work at a much reduced level and in a routine clerical capacity in the mail room. It is suggested, probably with some justification, that the willingness of British Aerospace to employ him in any capacity at all was probably governed by a feeling of sympathy for a young man who, it is accepted, was of above average intelligence prior to the accident, and might otherwise have been able to look forward to a rewarding career in aeronautical engineering and design, but who had been overwhelmed by such a catastrophe.
6. In the event, M. remained in employment with British Aerospace until March 1989 when he resigned. He did so, it is suggested, partly because of frustration at the menial level of his work, and also because his fellow workers (who may well not have been the most stimulating of companions) all tended to smoke heavily, and working in a smoky atmosphere aggravated the pain in his arms and hands. Apart from one or two relatively short term employments between 1989 and 1990 he has not worked since. I acknowledge that this is the sketchiest possible outline of the general nature and sequelae of M.'s orthopaedic and neurological injuries but, for the purposes of this preliminary issue, no further detail is necessary. I shall consider in greater detail the impact of his head injury at a later stage in this judgment.
7. M.'s parents consulted Mr. Michael Wilks, a partner in Brutton and Co. relatively soon after the accident, and a writ was issued against Mr. Jewell and Home Counties Dairies on 24th December 1980. Mr. Wilks was at that time a solicitor who had been admitted in 1972. Prior to this he had been a legal executive in an Exeter firm for about 3 years and had also served 5 years' articles there. His practice throughout had been a specialist personal injury one, and by 1980 it was very substantial. He acted for both claimants and insurance companies and saw a wide range of this type of litigation. The slow resolution of M.'s medical condition and the number of operations and other treatments he had to undergo and the consequential complications in collating a large number of medical reports and calculating both past and future financial losses took some time, so that a statement of claim was not served until 2nd September 1985. A defence, denying negligence and alleging the negligence of M. being the sole or alternatively a contributing cause of the said collision was served on the 3rd November. The statement of claim was settled by Mr. Raymond Walker of counsel who was at that time a senior junior barrister of some 19 years standing also specialising in personal injury litigation. He had been instructed by Mr. Wilks to advise on both liability and quantum. In a written opinion dated 29th April 1985 Mr. Walker advised that M. himself would be likely to be held at least one third to blame for the collision, and that the apportionment could be as unfavourable as one of 50%. On quantum he advised that general damages for pain and suffering should amount to about £40,000 to which should be added a Smith v Manchester award of £10,000.
8. In October 1985 the defendant's insurers paid into court £25,000. Negotiations continued and on the 11th September 1987 the amount in court was increased to £70,000. As it happens, two days previously Mr. Wilks, M. and his father had attended a conference with counsel in London to review the case generally. From Mr. Wilks' attendance note it would appear that the conference lasted for some three hours. The notes show that every aspect of the conduct of the litigation was gone into, and although Mr. L. complains that neither he nor M. took any significant part in the conference, I doubt very much that that complaint is justified. The terms of Mr. Wilks' instructions to counsel make it plain that M. and his father were attending the conference to receive reassurance as to the outcome of the case, and it is Mr. Wilks' recollection that both took part in the discussion and that M. dealt, apparently sensibly, with all the questions put to him. Mr. Walker has no live recollection of the conference but in his witness statement (which is agreed) he asserts that there was nothing in his instructions or in M.'s behaviour which gave him the impression that he was or might have been a patient. Mr. Wilks says the same thing, and it should perhaps be noted that Ms Laura Cox QC, on behalf of M. expressly disavowed any criticism either of Mr. Walker or Mr. Wilks for failing to discern anything about M. or his behaviour which might have given rise even to the suspicion that he might not be capable of managing his own affairs.
9. At the conference it would appear that Mr. Walker, in the light of updated figures for loss of earnings and a somewhat increased Smith v. Manchester figure put the total value of the claim on full liability at £117,000 and advised that a payment into court of 50% (i.e. just under £60,000) should be seriously considered.
10. On 13th September 1987 M. himself wrote to Mr Wilks expressing unhappiness with the sum now offered and asked three relevant and sensible questions as to the possible effect of delaying an acceptance. Mr. L. senior says that this letter, although physically written by M., was very largely dictated by himself. On the 15th September there was a conference at Brutton's offices in Fareham involving Mr. Wilks, M., both his parents and a Mr. Boote, a financial director of Mr. L.'s company who was a confidant of the family. Mr. Wilks' advice, basing himself upon Mr. Walker's opinion was that the sum now on offer should be accepted. His attendance notes reads:-

"M. with the advice of his parents decided that the appropriate figure (to be put to the other side as one which he was prepared to accept) should be a (further) £10,000"

Mr. Wilks was instructed to continue negotiations on that basis. Mr. Wilks did so and on the following day the defendant's solicitors took instructions and were authorised to pay a further £6000 provided the final figure was accepted within 24 hours. Mr. Wilks telephoned M. on the same day and his attendance notes record M.'s acceptance of that figure. The action was accordingly compromised on the basis of a total figure of £76,000 and costs.

11. The contents of the attendance note for the conference of the 15th September makes it plain that Mr. Wilks (and indeed Mr. Boote) were advising M. and his father very strongly that the sum of £70,000 should be accepted. When the revised offer came in the following day Mr. L. senior, according to an attendance note of a telephone conversation with Mr. Wilks, expressed himself as "absolutely delighted". He subsequently wrote a letter of thanks in glowing terms, which M. also signed. M. however, from the contents of his diaries for the relevant date, appears to have been much less enthusiastic, and indeed described the offer in derogatory terms. It appears that he found it particularly difficult to accept that he was in any way to blame for the accident. Nevertheless, the action having been settled, he invested the money and for some five years he lived with his parents using the income from the money to meet his own expenses. In 1992 he used his capital to buy a house for about £55,000, I am told. His money was sufficient to pay the whole purchase price of the house without the necessity of borrowing on mortgage but, of course, this brought his investment income to an end. Since that time M. has had to rely for his support upon state benefits, it being accepted that the sum total of his physical and mental disabilities are such that he is unlikely ever to be able to obtain worthwhile remunerative employment. In such circumstances, in 1992 M. raised the possibility of going back to Brutton & Co with a view to seeking additional sums by way of compensation. Mr. L. describes himself as reluctant to embark on such a course and "dragged his feet" - but M. persisted and late in 1993 he went in to see a Mrs Wall at Bruttons who told him that once the claim had been finally settled there was, on the face of it at least, no basis upon which it could be reopened. M., no doubt with the support and advice of his parents, then consulted his brother-in-law, Mr. Nicholas Knowles who is a solicitor. On 17th December 1993 the firm in which Mr. Knowles was a partner issued a writ against Brutton & Co. for damages for negligence and/or breach of contract in relation to their conduct of the litigation which they carried out on M.'s behalf. A statement of claim was served on the 21st May 1996; and, predictably, by paragraph 2 of the defence, served on 6th February 1997 the defendants, Brutton & Co, pleaded that M.'s claim was statute barred by virtue of the provisions of the Limitation Act 1980.
12. In June 1997 M. consulted Dr. Martyn Rose, a consultant in neuropsychiatric rehabilitation, at the Kemsley Centre at St. Andrew's Hospital Northampton. That doctor expressed the view, which he supported in evidence before me, that M. was then, and had been since his accident, a patient within the meaning of the Mental Health Act 1983. This was, according to Mr. and Mrs. L., an entirely new concept to them, and it is accepted that none of all the doctors who had examined or treated M. since 1980 had ever previously expressed such an opinion. As a result of that advice, M. has sought to reopen the settlement of his personal injury action on the basis that it has never received the approval of the Court, as would then have been required by R.S.C., O.80 r.10, and now by C.P.R. Part 21 rule 10.
13. In October 1999 M.'s solicitors transferred the original personal injury action from Southampton County Court to the Queen's Bench Division of the High Court, and in March 2000, Master Murray directed that the preliminary issue set out at the outset of this judgment should be tried together with the same issue arising in the action against Bruttons. It will be apparent that the determination of this issue may have a significant impact first, upon the ability of the claimant to escape what might otherwise appear to be the unavoidable consequences of a binding settlement of his personal injury in 1987; and, secondly upon his ability to maintain a claim for damages against Brutton & Co. notwithstanding the lapse of time since any cause of action that he might have against them has accrued.

The Law

14. Under section 94(2) of the Mental Health Act 1983, the word "patient" means a person who, by reason of mental disorder within the meaning of the Act, is incapable of managing and administering his property and affairs. Under section 1(2) of the same Act, "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind. It is common ground between the experts in this case that M. does indeed suffer from mental disorder in the form of executive dysfunction coupled with defects of memory consequent upon traumatic injury to the frontal lobes of his brain. Accordingly, the investigation in these proceedings has focused upon whether M. at any material time can be shown to have been incapable of managing and administering his property and affairs.
15. It is a remarkable fact that all the researches of counsel in this case have failed to unearth any prior appellate authority on the meaning of these words. The only confident interpretation that can be asserted is that "affairs" means "only business matters, legal transactions and other dealings of a similar kind" (See In Re F. (1990) 2 AC 1. at p.59G). Indeed, only one of the very experienced doctors who gave evidence before me had ever been called upon to support his opinion on this question before a court. This is particularly surprising, as Master Lush, the Master of the Court of Protection, observes, since it is the cornerstone of the Court of Protection's jurisdiction under the Mental Health Act 1983. This may be because, in the context of personal injury litigation at least, if respectable medical opinion is proffered that a claimant should be made a patient, there is little incentive for those concerned in such litigation to challenge such an opinion, particularly if the matter is on the way to being settled. The appointment of a litigation friend and the obtaining of the approval of the court means that any such disposal of the litigation will be proof against any subsequent challenge based on the alleged incapacity of the claimant and if, in the end, it turns out that the claimant is not incapable then his receivership will be discharged and he can revert to having full autonomy over his affairs.
16. However that may be, there are certain principles that in my judgment can be confidently stated. The first principle that is clear is that it is for the court to decide whether or not a person has capacity - not the medical profession. See Richmond v. Richmond (1914) LT273 per Neville, J. On reading the claimant's opening note, the approach of his advisers to these proceedings seemed to be that the determination of this question would turn upon the decision as to which of two conflicting bodies of opinion expressed by the various doctors involved in the matter is to be preferred by the court. In my view that is taking too narrow an approach to the problem. Although the opinions of skilled and experienced medical practitioners are a very important element in the evidence to be considered by the court, that element has to be considered in conjunction with any other evidence that there may be about the manner in which the subject of the inquiry actually has conducted his everyday life and affairs. Such an approach is of particular importance in a case such as the present, where a mass of evidence has been put before the court about various aspects of M.'s way of life and the way in which he manages his affairs, stretching over a period of nearly twenty years since the happening of the accident which gave rise to his original head injuries. In fairness to them, it is only right to record that all the doctors instructed in the case accepted this as being the correct approach.
17. The second basic principle to be applied is that the presumption of capacity applies to a case of this nature - that is, that M. is presumed to be capable of managing his affairs until the contrary is proved. Ms Cox QC on his behalf challenged the application of this presumption in the circumstances of this case on the basis that, as all the doctors concerned were agreed, for some period of time after the accident, amounting possibly up to as much as three years, M. was indeed incapable of managing his own affairs. Ms Cox argues that in such circumstances the presumption of capacity is displaced, and indeed is replaced by the presumption of continuance to the effect that once it has been shown that a person is mentally incapable, then that incapacity is presumed to continue until the contrary is proved.
18. I do not accept this contention in the context of the present case. There must be many cases where a person who suffers serious head injuries will be incapable of managing his affairs during the period of recovery from those injuries, which period may extend for a considerable time. Once such a person has reached the stage of final recovery and his mental condition is in a stable state, then in my view it is appropriate to approach the question of his capacity de novo, and without any presumption of continuance. See per Winn, L.J. in Kirby v. Leather (1965) 2 QB 367 at 386-7. Dr. Rose, who was the first doctor to express the opinion that M. was a patient, described himself as starting from a clean sheet, and from a medical point of view I am sure that such is the correct approach. For the purpose of these proceedings, whether the presumption of capacity, strictly speaking, still applies or not, it is for the party who contends for incapacity to prove such a proposition. However, the view that I have taken on the evidence in this case is such that I have not found it necessary to determine the issue on the basis of where the burden of proof lies.
19. The basic starting point in considering what is meant by 'capacity' must be the common-law rule to the effect that to have capacity concerned must at the relevant time understand in broad terms what he is doing and the likely effects of his action. Thus in principle, legal capacity depends on understanding rather than wisdom; the quality of the decision is irrelevant as long as the person understands what he is deciding. (See Law Commission Consultation Paper 119 para 2.10). The wording of section 94(2) of the 1983 Act seems to me to make it clear that the assessment of a person's capacity to manage and administer his property and affairs is a question of functional capacity and is essentially a subjective matter. In Re C.A.F. ...1962) (unreported), the then Master of the Court of Protection, Sir Raymond Jennings QC, had to consider the case of a widow who had a life interest in her late husband's estate (worth about £250,000) together with his mansion in which she lived. She also had her own free estate of about £50,000. As the result of a series of strokes she had suffered an extensive brain lesion which had seriously impaired her intellectual functions. She could say little more than "yes" or "no" and had no comprehension of script. She had little or no power to initiate thought and although she might register assent or dissent, one could not be certain that she really understood propositions that were put to her. The Master, in concluding that she was incapable of managing and administering her property and affairs made particular reference to the size and complexity of the estate for which she was responsible. An appeal from his decision came before Wilberforce, J. (as he then was) and it appears that he upheld the Master. Unfortunately, no transcript of his judgment now survives, but the leading textbook on Court of Protection practice, Heywood & Massey (12th edition, page 17) cites his decision as authority for the proposition that:-

"The question of the degree of incapacity of managing and administering a patient's property and affairs must be related to all the circumstances, including the state in which the patient lives and the complexity and importance of the property and affairs which he has to manage and administer"

20. I have been shown certain Australian authorities which have briskly debated the correctness or otherwise of this proposition. There are two judgments of Powell J. in the Supreme Court of New South Wales which expressed the view that the approach should be an objective one; but with all respect to that learned judge I prefer the approach of Starke, J. in the Supreme Court of Victoria in Re MacGregor (1985) VR 861. That judge followed Re C.A.F. and held that the subjective test is the appropriate test, observing (at p.866):-

"The Act itself appears to me to lay down the test. It speaks of "managing his affairs" not the "ordinary routine affairs of man". The court under the Act is exercising its protective jurisdiction in respect of individuals, not a class of persons..."

21. I respectfully agree that this is the correct approach. It seems to me that it must be relevant, when considering whether a given individual has or has not the capacity to manage and administer his property and affairs to consider the nature and extent of the property and affairs that he has to administer. To do otherwise would be to incur the risk of stripping an individual of the right to be the master of his own fate - a serious inroad into his dignity and standing as a human being - for no good reason.
22. The only other English authority which appears to bear upon the topic is another (unfortunately) unreported case: W. v. Fell (1987). In that case the plaintiff, S.W., sustained very severe head injuries in a road accident, in circumstances where she would have been likely to recover damages in full - but the solicitors originally instructed allowed the period of limitation to expire without ever serving the writ that they had issued. Subsequently, some three years out of time, a second writ was issued and served against the original tortfeasors, as also were proceedings against the original solicitors.
23. The original tortfeasors pleaded that the action against them was statute barred. The plaintiff answered that pleading by claiming that she had been a patient ever since the date of the accident and at least to a date within three years before the issue of the second writ. That issue was again tried as a preliminary issue. Although the case is unreported I have been furnished with a transcript of the judgment of Boreham, J. It is unnecessary to consider the details of the plaintiff's injuries and consequent disability as found by the judge except to comment that they bear a marked similarity to those suffered by M.. If anything they would appear to be somewhat more severe, particularly insofar as the level of intelligent is concerned. When dealing with the questions that had to be asked when assessing whether that plaintiff was lacking capacity, Boreham, J. said:-

"The expression "incapable of managing her own affairs and property" must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is now quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided. In matters of law, particularly litigation, medicine, and given sufficient resources, finance professional advice is almost universally needed and sought. For instance, if the plaintiff succeeds in her claim for compensation, as almost inevitably she will, then she will need to take, consider and act upon appropriate advice. Even without the accident, all that would have been necessary if her property and affairs were to be sensibly managed. It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice. Experience indicates that she has such insight. For instance, when at home some physical task is beyond her, and when she cannot herself find a solution, she calls on her very good neighbour Mrs. W.. When she is faced with personal problems such as, for instance, her desire to divorce her husband, she consults her parents, and with them a solicitor. The evidence is that she realises the extent of her disabilities and that she has a very substantial claim for compensation. She recognises the need for advice in administering a large sum which she is likely to receive.

Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately. Here she will be inhibited by her difficulty in communication and her defective memory. Certainly it will take her longer to communicate than it would have done but for the accident. On the other hand, she has shown herself capable of instructing solicitors; she has shown a determination to overcome her defective memory, and she has apparently succeeded. It may not be without significance that in neither her divorce proceedings, nor in the first action commenced against the defendant was a guardian or next friend appointed.

Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive. I accept that she may not understand all the intricacies of litigation, or of a settlement, or of a wise investment policy. As Dr Evans put it, she would not know the difference between long and short term investments. I am sure he is right. But if that were the appropriate test then quite a substantial proportion of the adult population might be regarded as under disability. What seems to me important is that she has demonstrated her capacity to understand and to make decisions in her matrimonial affairs. Perhaps of greater importance is that she had made those decisions for appropriate reasons."

24. Applying those tests to the facts of the case before him, Boreham. J. held that Mrs. W. was not a patient within the meaning of the 1983 Act. Ms. Cox attacks this decision on the basis that it is a relic of an earlier age, when medical understanding of traumatic brain injury was (impliedly) in its infancy and ignores what is argued to be the central issue of vulnerability and risk. I found this submission surprising, both on the basis of my own recollection of personal injury practice at that time, and also the fact that the judgment in W. v. Fell was delivered about three weeks after the settlement of M.'s original action. In reality, the conflict between Ms Cox's submissions and the approach of Boreham J. arises out of the far more liberal interpretation of the wording of the Mental Health Act put forward on behalf of the claimant in the present case. That interpretation, broadly speaking, contends for a finding of incapacity if the effect of the injury to his brain renders him vulnerable to exploitation or at the risk of the making of rash or irresponsible decisions.
25. With respect, the approach of Boreham, J. appears to me to be the correct one. In 1995 the Law Society and the British Medical Association produced a joint publication entitled "Assessment of Mental Capacity - Guidance for Doctors and Lawyers". At page 29 paragraph 3.2.4 a check-list is provided of the matters which fall to be considered when a lawyer or doctor is assessing a person's capacity to manage and administer his or her property and affairs. The authors disclaim any intention to be exhaustive or authoritative, but proffer the list as an indication of the wide range of information that may be needed in order to make a proper assessment of a person's capacity to manage his or her property and affairs. Thus it is suggested that an examination of the extent of the person's affairs includes not only an examination of the value of income and capital, financial needs and responsibilities and the extent of the specialised knowledge and time that it might take to manage such affairs, but also the extent to which the person in question would be likely to seek, understand and act on appropriate advice where needed in view of the complexity of his affairs. Further, the personal information about the subject of the assessment which should be taken into consideration includes the condition in which that person lives; his or her family background, family and social responsibilities; and, the degree of backup and support the person receives or could expect to receive from others. The authors then proffer three other questions that should be considered:-

1. Could inability to manage the property and affairs lead to the person making rash or irresponsible decisions?

2. Could inability to manage lead to exploitation by others - perhaps even members of the person's family?

3. Could inability to manage lead to the position of other people being compromised or jeopardised?"

These are the questions that Dr. Rose tells me he posed for himself when assessing M.'s condition; while they are plainly proper and appropriate questions to ask, they have to be answered, in my view, in the light of the other guidance set out in the check-list, and in particular in those aspects I have specifically quoted.

26. In so saying I do not lose sight of the fact that such an approach may be stigmatised as being illogical. Why, it may be asked, when the Court is assessing someone's capacity as a matter of status, should it be concerned with the extent and complexity of the subject's affairs, or his ability to take, understand and act upon appropriate advice? The undoubted logic of the question illustrates, as it seems to me, the inevitable tension that must exist between the understandable desire to protect all mentally handicapped people from the consequences of imprudent decisions or exploitation by others, and the requirements of practicality. If too liberal a construction is applied to the words of s.94(2) the Court of Protection is liable to find itself inundated with applications in respect of persons who need no protection, in the sense that the Court gives it, either because they have no property or affairs that require any significant degree of management, or because they are entirely capable, given explanation and advice, to take decisions, for themselves for better or worse, on their business, financial and other similar matters.
27. In re C (Adult: refusal of treatment) (1994) 1 WLR 290, Thorpe, J (as he then was) when considering the definition of capacity in the context of the withholding of consent to medical treatment, expressed approval of a three stage analysis of the decision-making process: first, comprehending and retaining treatment information; second, believing it; and, third, weighing it in the balance to arrive at a choice. In so doing he also expressed approval of the approach of the Law Commission in Consultation paper No.129 "Medically Incapacitated Adults and Decision Making". In its final Report No.231 on "Mental Incapacity" the Law Commission reiterated its support for this "functional" approach to the question of capacity. The recommendations were:-

1. That a person should be regarded as unable to make a decision by reason of mental disability if the disability is such that, at the time when the decision is to be made, he or she is unable to understand or retain the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision.

2. That a person should be regarded as unable to make a decision by reason of mental disability if the disability is such that, at the time when the decision needs to be made, he or she is unable to make a decision based on the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision.

The Law Commission also made two further recommendations which qualify these basic recommendations in an important and major way, and which in my view are particularly germane to the issues in the present case. Those qualifications were:-

1. That a person should not be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of that information in broad terms and simple language.

2. That a person should not be regarded as unable to make a decision by reason of mental disability merely because he or she makes a decision which would not be made by a person of ordinary prudence.

28. The first of these two qualifications, as it seems to me, plainly contemplates as a relevant factor that the person under consideration may have access to and be able to make use of advice about and explanation of the facts and matters germane to the decisions that he has to make in and about the management and administration of his property and affairs. Further, the second qualification seems to me to indicate quite clearly that the crucial question on the issue of capacity in the view of the Commissioners must be the extent to which the subject of the inquiry is capable of making a decision based on information relevant to the decision; but it is not necessary to show, in order to establish capacity, that any such decision when made will fall within the limits of decisions which would be likely to be made by persons of ordinary prudence.
29. These recommendations by the Law Commission, based as they are upon exhaustive consultation, permit me to observe, if I may do so without disrespect, that they confirm the views that I had tentatively formed during the hearing of this case that these are the principles that should be applied when assessing the question as to whether an individual lacks capacity to such an extent that he or she should be declared a patient. The purpose of the Court's jurisdiction to declare a person to be a patient, with the consequent involvement of the Court of Protection, is not to protect the individual from the consequences of a wrong or imprudent decision; it is to take out of the hands of that individual his or her decision-making function in relation to property and affairs, when it is shown on the balance of probabilities that such person does not have the capacity sufficiently to understand, absorb and retain information (including advice) relevant to the matters in question sufficiently to enable him or her to make decisions based upon such information. The Court is not concerned with the question whether such decisions, when made, are wise or unwise, or on good advice or bad. It is against the background of these principles which I have endeavoured to set out that I approach the evidence in the case.

Evidence

30. Notwithstanding that the determination of the issues in this case have involved, among other things, a consideration of M.'s life and times, interests and achievements over the course of the last twenty years, M. himself has not been called to give evidence, nor indeed has he ever attended court. Ms Cox QC explained to me that the advice received from her medical experts is that his memory deficit is such that he would make an utterly unreliable witness. Further, it is thought by those who know him well that cross-examination would certainly be distressing to him, and might possibly be damaging. Having regard to the fact that his father was in the witness box for the best part of eight days, I feel a good deal of sympathy for that view, and indeed I unhesitatingly accept that the concerns expressed are genuine. Nevertheless, I feel constrained to echo the observations of Boreham, J. in W. v. Fell, where the plaintiff was also not called, that the best evidence in the sphere of communication and comprehension would have come from M. himself had there been the opportunity to speak to him and to hear him answer questions. Accepting that his memory defects might have made it pointless to ask him to deal with matters of detailed fact that occurred a long time ago or even in the more recent past, I cannot but think that much would have been gained by way of a fuller understanding of his level of intellectual functioning if I had been able to hear him answer questions, even of the most general and undemanding nature. An opportunity to assess for myself how M. formulates his thoughts and expresses them, would, I think, have given me a much greater insight into the level and nature of his mental processes. As it is, I have to do the best I can with the evidence of those who have carried out clinical examinations of M., and those who know him on a day to day basis in the context of his ordinary living conditions. I stress that I do not suggest that any evidence that he might have given would necessarily be of sufficient reliability to contradict factual statements made by such witnesses; but the experience of seeing and hearing him would I think have added a further layer of understanding to that which the witnesses were attempting to describe.
31. The reason why Mr. L. was constrained to spend such a lengthy period of time in the witness box is explained by the fact that at a relatively late stage in the preparation for trial, and as a result of unremitting pressure by the solicitors for Brutton & Co, a mass of factual material relating to M.'s everyday life has been disclosed. It was first discovered that since about 1983, as the result of a suggestion made to him in the very early stages of the preparation for the action against Home Counties Dairies and Mr. Jewell, M. has been keeping a detailed diary. Even after that case was purportedly settled, M. has continued to keep such a diary, with the result that there are now before the court typed copies of all M.'s diary entries from 1983 until the end of 2001. Additionally, and later still, it was discovered that even while he was still working, and more so since he has become unemployed, M. has spent much of his available spare time writing letters to a wide variety of friends, acquaintances and people in whom he is interested, and composing other documents relevant to his various interests. Downloading the floppy disks from M.'s personal computer has yielded some 15,000 pages of material, of which some 3000 have been copied for the court and a selection from those 3000 have been put before me. The defendants rely heavily upon this material in support of their contention that M. is not now and never has been a patient within the meaning of the 1983 Act at any relevant time. I shall have to refer to this voluminous material in more detail at a later stage in this judgment.
32. I start however with the medical evidence. The experts on both sides in the respective specialities have helpfully met and produced joint reports. It is plain that there is a substantial measure of agreement between the experts, and that the differences between them are largely if not entirely matters of degree. As I have already noted, it is common ground that M. sustained a severe brain injury, as a result of which he now suffers from significant impairment of executive function (sometimes called dysexecutive syndrome) which is associated with frontal lobe brain damage. This dysfunction is compounded by a very serious deficit of memory. Dr. Powell, the neuro-psychologist instructed by the claimant estimates his memory function to lie in the 99th percentile of the general population, which is in the mentally retarded range. However, it is accepted by all that M. is able to compensate for this memory deficit by the devices of keeping his diaries, and of making exhaustive lists of things that he has to do during the day. These are well understood substitutes for memory, and it is not suggested that this deficit alone has a sufficiently disruptive effect upon M.'s intellectual functioning to render him a patient. Its primary significance is that it compounds the effect of his dysexecutive syndrome by reducing his ability to cope with it. The dysexecutive syndrome itself involves changes in personality such as obsessionality, immaturity, rigidity of thinking, eccentricity and emotional outbursts. The effect of this syndrome is to impair his ability to organise his life and to plan many of his everyday functions. On the other hand, it is again accepted on all sides that the nature of the damage to M.'s brain is such that his pre-accident level of intelligence is very largely preserved. It is further agreed that M.'s condition has remained essentially unchanged since about 1983.
33. Dr. Powell, supported by Dr. Rose identified ten factors that in their view tended to show that M. lacks capacity:-

a) He has been unable to sustain his previous work standards to the level as prior to the accident.

b) He has been unable to get back to work after losing his job.

c) He has shown risky behaviour with regard to his personal safety, such as climbing a ladder onto a roof when one arm is useless.

d) He is disinhibited and a "blabbermouth" about his finances which puts him at risk.

e) He maintains contact with people of extreme views, who are "not wholesome".

f) He has expressed extreme views and demonstrated a willingness to break the law.

g) He is emotionally immature, and vulnerable in his relationships.

h) He is generous to a fault with his limited resources.

i) He is still in contact with extremist groups and prisoners and has not matured out of such views.

j) He still has juvenile fantasies about girls.

Dr. Powell adds that when these deficits are coupled with self centred thinking and a rigidity of approach his relationships with other people and with the problems of life "don't mesh". I have to observe, however, that not all these matters will engage, even indirectly, with business and similar matters.

34. However, the two neuro-psychologists also agree that M.'s test performance is not so bad that the results speak for themselves and utterly rule out his having capacity. Dr. Powell agreed in cross-examination that M. was very much a borderline case. Dr. Rose, who was the source of the original suggestion that M. was a patient, expresses fewer doubts about the borderline nature of M.'s disability, but I am bound to observe that in my judgment Dr. Rose's conclusions seem to be considerably affected by his approach to the concept of protection. This he regards as having the purpose of protecting individuals from making foolish mistakes; and while he considers whether the individual subject understands the need to obtain advice, he does not take into account, when assessing whether or not an individual is a patient, that advice may be available to him. This approach seems to me to be inconsistent with the common law, the guidance offered by the joint B.M.A./Law Society publication, and also the recommendations of the Law Commission. All experts agree, as I have previously noted, that M. was probably incapable of managing his affairs for a period of anything up to three years immediately following upon the accident. Dr. Rose is of the opinion that he has never regained capacity. Dr. Jacobson, the consultant neuro-psychiatrist instructed on behalf of Brutton & Co. considers that M. did regain capacity at the latest within three years of the accident as the aggravating effects of depression on his cognitive function lessened as his depression improved. While it is accepted that M. may from time to time suffer depressive episodes - one such is evidenced by a serious suicide attempt in 1990 - such episodes are of a transient nature, and in broad terms M., while doubtless unhappy and depressed in lay terms, does not suffer from a depressive illness. There seems to me to be no evidence that M. was suffering from any such depressive episode during the critical period when his claim was negotiated and settled in the autumn of 1987.
35. Doctors Moffat and Roberts, the consultant neurologists, agree that M.'s somewhat eccentric interests since the accident are unlikely to reflect the effects of brain injury. They consider that his brain injury may have contributed to his obsessive and rigid behaviour, but have not determined his interests. Dr. Jacobson agrees with this view; Dr. Rose thinks that his eccentricities are the direct results of the brain injury. I should observe that while Dr. Rose has much experience in neuropsychiatric rehabilitation as a consultant at the St. Andrews Hospital Northampton, he trained as a neuro surgeon, and does not have the background in neuropsychiatry or general psychiatry enjoyed by Dr. Jacobson. I prefer the view expressed by Dr. Jacobson, Dr. Moffat and Dr. Roberts.
36. Ms. Cox Q.C. however, places reliance upon an observation by Dr. Roberts, first expressed in his report of 16th February 2001 that M.'s handling of any large sum of money should be supervised by reliable trustees (of which he might be one although not with sole control). However I am clear that Dr. Roberts was thinking in terms of wisdom, and not understanding - this is made clear by his follow-up letter of 14th March, and by his evidence before me. He acknowledged that people such as M. might be vulnerable to exploitation, but expressed the view very strongly that this did not mean that he could take no part in the management of his own affairs. The approach that I take to the issue I have to determine lead me to the conclusion that Dr. Roberts' views do not assist Ms. Cox in her submissions.
37. One of the more acute disagreements between the doctors on either side is as to the significance of the diaries. Dr. Jacobson and Dr. Leng both consider that the diaries, taken with the letters, seem to demonstrate sufficient capacity to manage his own affairs: Dr. Rose accepts that differences in performance between results obtained at formal clinical examination and demonstrated by the records of ordinary everyday life are apparent - "the evidence points both ways". I should observe here that Dr. Leng points out, in my view helpfully, that the results of clinical testing and examination, being examiner-driven, may not necessarily reflect the subject's real-life performance, for better or worse (it is usually worse); but that training, the development of routines and the use of aids may enable him to function better in real life than the test results might indicate. Dr. Leng's position is one of uncertainty, given what he sees as inconsistency between the test results and the material contained in the diaries and other documents. Dr. Powell thinks that the diaries and letters do yield evidence of rigidity of thinking, poor judgment, immaturity, cognitive deficit and vulnerability. Dr. Moffat does not think that this material contributes substantially to the resolution of the problem. Having spent many days reviewing the diaries and the letters I am satisfied that this material taken in conjunction with the other evidence as to how M. has functioned over the past twenty years is of very considerable assistance to me in reviewing the opinions expressed by the doctors and in assessing to what extent their differing views have been justified in practice.
38. Before leaving matters of medical expertise, I should briefly refer to the medical evidence that was obtained for the purposes of the original action. It is apparent that apart from reports by orthopaedic specialists, M. was examined and reported on by at least two consultant psychiatrists and a clinical psychologist. Those experts have not given evidence, but their reports are in the disclosed documents. Dr. John Grimshaw, a consultant psychiatrist practising in Southampton wrote three medical reports between 1982 and 1987 on the instructions of Mr. Wilks. In 1982 he identified some degree of intellectual damage, particularly in the ability to retain certain pieces of information and reduced dexterity and flexibility of thinking, and he recommended a full formal psychometric assessment. That was provided in 1983 by Mrs Barbara Plant, a clinical psychologist and she established that there had been no overall deterioration in M.'s intellectual functioning. His short term memory for verbal material and his recall of day to day events was within the normal range, but his long term memory showed marked impairment. Nevertheless she pointed out that his positive attributes of good overall abilities and personal resources could be utilised to reduce the effects flowing from this impairment. It appears to have been this lady who recommended the use of a diary. In July 1984 Dr. Grimshaw re-examined and thought that M. had now reached the end state. He expected M. to have difficulty in retaining information with slowing of thinking and a tendency towards rigidity. The consistency of the findings indicated that these disabilities were the result of organic damage and he regarded M. as an entirely reliable witness. However in 1987 when Dr. Grimshaw examined and reported again he found a significant improvement particularly as regards memory function and retentiveness. The rigidity of outlook and negative view of life in general remained unchanged and Dr. Grimshaw took the view that his espousal of some extreme views should be seen as a voluntary act on his part. There was by this time no evidence of perseveration. Mrs Plant re-examined at about the same time and she found that although his memory defect remained broadly unchanged, recognition of verbal material was intact. The problem was not the storage of material in the memory but accessing it. I infer that the apparent improvement found by Dr. Grimshaw is likely to have been explicable on the basis of a lifting of depression and of M.'s increased use of memory aids. It is common ground that neither of those expert medical witnesses made any reference to the possibility that M. was a patient. It is also known that M. was examined on behalf of the original defendants by Lady Brenda Clerk, who was then prominent as a clinical psychologist advising in medico-legal matters. Her reports are no longer available, but again it is not suggested that she identified M. as a patient.
39. I should however make specific reference to two reports prepared on M.'s behalf by Professor D.L. McLellan, who was at the material time the Europe Professor of Rehabilitation at the University of Southampton, and a consultant neurologist by speciality. He examined M. in October 1984 and again in September 1987. On the second occasion Professor McLellan observed "If he were not supported by his father, Mr. L. would probably be capable of maintaining an independent existence, but he would then become more isolated and his behaviour might deteriorate. It is also doubtful that he would make sensible judgments on financial matters or in relation to diet or self care."
40. Professor McLellan gave evidence before me. He frankly admitted that as a consultant neurologist he was not much involved in cases of serious traumatic head injury - in the mid eighties that was more regarded as a field for neuro-surgeons. Further, at the time of his involvement, rehabilitation as a specific speciality was only just beginning to develop, and he had not long been in it. Nevertheless, he points to the passage that I have quoted from his second report as being intended to flag up the kind of problems that should have put the legal advisers on notice that the claimant's capacity might be open to question. He expressed regret to me that he had not done it more clearly, and observed if he were examining M. today he would have expressly made the point.
41. Professor McLellan gave evidence as a witness of fact, and not as an expert. I do not doubt that, when looking back from today's standpoint at the reports that he wrote in 1984 and 1987, his present view is that M. was at the material time a patient. Whether he would necessarily have formed that view in those terms at that time is less clear. But in any case Professor McLellan wrote his two reports and gave evidence before me without any access to any of the other information that I have about how M. has fared from the date of the accident to the present day. Accordingly, and consistently with the approach that I have taken to the expert medical evidence, I have to consider Professor McLellan's evidence in the light of all that other material and come to my own conclusion as to how far his opinion, undoubtedly genuine, helps me in making the decision that I have to make. It will also be apparent that the passage from the 1987 report relied upon by Professor McLellan does not, on its face at least, fit well with the approach to the question of status as a patient that I consider appropriate.
42. I now turn to consider the remainder of the factual evidence that has been put before me. Its volume is such that I have felt it necessary to resort to summary in order to avoid overloading this judgment with excessive detail.
43. Both Mr. and Mrs. L. gave evidence. It was obvious throughout that they are both thoroughly decent people and devoted parents who are devastated, even now, by the catastrophe that overwhelmed their only son just as he was emerging into adulthood and showing all the promise that he was subsequently unable to fulfil. I am also quite satisfied that as a consequence they are enormously protective of M., and that protectiveness has led them both to some degree at least to exaggerate the difficulties under which he labours. A recent illustration of this is to be found in an application for disability living allowance submitted to the DSS by Mrs L. in November 2000. The descriptions of the amount of help that M. needs on a day-to-day basis are manifestly excessive, and it is sufficient to say that I found Mrs L.'s explanations of these discrepancies less than convincing. So far as Mr. L. is concerned, while he gave much evidence which was derived from his own direct observations of his son and his circumstances, much else amounted to anecdotal accounts of a second-hand nature and statements of Mr. L.'s belief in the way in which M. would have reacted to situations in his father's absence. Much of this was evidence which could properly only have been given by M. himself, and I have had to bear in mind the limited value of the accounts given by his father, genuinely believed though they may be.
44. Essentially, Mr. and Mrs. L. fear for their son's vulnerability. From being a conventionally brought up, well balanced and contented teenager, M. has developed into an adult of extreme views on a variety of issues, notably Veganism, the environment, ecology and animal rights. Up until the year 1990 he was an enthusiastic and active supporter of hunt saboteurs, and as a result now has two criminal convictions. The second, for arson, was a serious matter and it is clear that the family, including M., were deeply concerned that he might go to prison. In fact he received a conditional discharge at the Crown Court, and it seems that since that time he has distanced himself from the more violent activities of that movement. However, his enthusiasm for animal rights still leads him to attend demonstrations at such places as Shoreham Docks in connection with the export of live animals, and such premises as those of Huntingdon Life Sciences. Although he has been arrested many times, save only for one occasion when he was acquitted, he has not been charged with any offence. Nevertheless, his parents are concerned that as one of the few members of these kinds of groups with transport - and, in the earlier years, money - M. is liable to be preyed upon by the more manipulative members of such groups who make use of him for their own purposes and are likely to drag him into risky situations which he cannot properly appreciate or seek to avoid. Mr. L. is particularly concerned that M. persistently writes letters to members of the Animal Liberation Front who are serving prison sentences both in this country and abroad, and indeed has written to convicted murderers on "Death Row" in the United States. Since he acquired his own house in 1992, M. has from time to time provided accommodation to members of these groups - notably one individual, described by Mr. L. as "particularly notorious", when he was standing his trial at Winchester Crown Court on serious criminal charges. Matters of this kind fill M.'s parents with apprehension that he may suffer serious injury if demonstrations turn violent, or that he may once again fall foul of the law.
45. In the same context, the Listers fear that M., being too physically handicapped to take an active role in the front line of their activities, and also being one of the few members of these groups who is the owner of a substantial asset, might be the subject of manipulation to induce him to part with substantial sums of money that he cannot afford. He has on one occasion offered to pay the fines of two girls associated with him in hunt sabotage activities although it is not clear that he ever did.
46. His defective memory makes it very difficult for him to find his way about other than in areas or on routes that are very familiar to him. This deficit has led on one occasion to his getting lost in Winchester after his parents had moved there and, being unable to find his way back to their house, he spent the night on Winchester station. On other occasions he has embarked upon a journey and had to abort it and return because he has become confused and lost. His parents are apprehensive about what may happen to him on such occasions. Accordingly, when a journey is contemplated, M., with the assistance of his father, prepares an elaborate route plan, and is thus enabled to make journeys as far as the West Country and Cumbria. It is accepted that M. is able to look after his everyday maintenance and indeed it appears that the Vegan meals that he prepares for himself are both nourishing and healthy - although possibly unattractive to unbelievers. On the other hand, he regularly calls or visits his parents, obviously looking for help, and they are usually able to discover what is worrying him and to offer advice and guidance as to what he should do. His worries are usually financial, as is understandable for someone living on state benefits, and Mr. L. has in fact had to resort to a number of subterfuges to supplement M.'s finances without his knowledge. He is clear that M. would be very annoyed if he knew about this.
47. Mr. L. illustrates M.'s rigidity of thinking by pointing out that M. will not accept other people's opinions or advice if they should conflict with any of his obsessively held views on such matters as animal welfare, Veganism or other such matters. A particularly sad aspect of M.'s obsessiveness coupled with his intense desire to have a girlfriend, is his persistent description of himself as "ugly" and his reluctance to engage in a full sexual relationship because he does not wish to father children. This is undoubtedly an indication of low self esteem, and the diaries are full of such references.
48. Any problems relating to the maintenance and repair of his house or of his car or of the arrival of substantial bills such as for community tax or insurance premiums induce considerable anxiety in M. and he regularly takes such matters to his parents and deals with them on the basis of the advice and guidance that they give him. In the early days after the 1987 settlement, M.'s parents were concerned that he was being irresponsible with money and running up overdrafts on his current account that he could not manage. His father helped M. keep his finances in order by repayments from a total of some £15,000 that he had borrowed from his son, and in any event there were regular dividend payments from his various investments. Matters became more difficult when he bought his own house, and they describe occasions when he appears to have gone short of food and suffered discomfort because he has turned off his central heating for fear of going further into debt. However he accepted his father's advice to discuss money matters regularly with him, and since about 1996 he has, on his father's advice, made banking arrangements which do not permit him to run up an over-draft. To quote Mr. L.'s own evidence "the strict control on over-draft facilities coupled with our regular, strong warnings seems to have worked and M. now phones the bank almost everyday (to check on his balances) and takes our advice on large sums such as car servicing, road tax and insurance, which we usually pay." In fact, the evidence of his bank statements demonstrate that even when M. was spending money more freely he never exceeded his permitted overdraft limit, and his use of debit and credit cards appears to be perfectly responsible. Ms. Cox suggests that the expenditure of just under £4,000 on a top-of-the-range music centre out of his settlement monies indicated an inability to understand the value of money - frankly, a single extravagance of that degree to celebrate the settlement of his claim after seven miserable years seems to me to be nothing out of the way. It is clear from the diaries that he 'shopped around' to get the best available bargain.
49. The decision to give up his job with British Aerospace in 1989 was, with hindsight, unfortunate; but his reasons are understandable. I can well imagine that the menial nature of his work and his lack of empathy with his colleagues would have made the job intolerable. At the time he still had a very substantial cushion of money and I do not doubt that he had every intention of finding alternative employment. The fact that he was unable to conform to the requirements of the two training and rehabilitation courses that he was offered doubtless well illustrates the degree of personality change and lack of self esteem from which he suffers, but I have no reason to doubt that he was aware of what the immediate consequences of his intransigence might be, even though he may not have appreciated at that stage the difficulties that might follow in his finding other employment. I do not doubt his parents' evidence that he did make every effort to find alternative employment and accepted whatever jobs were offered to him. His mother despairs over the scruffiness of his cress and his unwillingness to cut his hair (which was one of the major causes of conflict between himself an the training centres during his brief attendances) - this no doubt is an outward sign of his immaturity.
50. Both Mr. and Mrs. L. are now in their late sixties and worry how M. will fare when they are no longer available to support him. Mrs L. particularly suggested that their motivation in seeking this declaration from me is that they wish to ensure that there will be someone responsible for M.'s supervision and guidance when they are no longer able to provide that for him. While I do not doubt that that may be part of the motivation behind these proceedings, it seems plain that there are also other considerations which flow from the current litigation. But in any case, it seems clear to me that M. will not want for advice and support after his parents have gone: there is ample evidence that his two sisters are very supportive of him, and he clearly has access to his brother-in-law, Mr. Knowles. Further, Mr. L. told me of his intention to put M.'s share of any estate he may leave into trust for him, with Mr. Knowles, an accountant and a member of the family as trustees.
51. I also heard evidence from two friends of M.'s, a Mr. John Vetterlein and a Mr. Chidgey. These two gentlemen share M.'s interest in Veganism, and have known him since about 1991. They run a Vegan bulk-buy co-operative store which M. uses as a matter of routine for his own supplies. They confirm many of the characteristics that trouble M.'s parents, and are particularly able to speak of his difficulties with relationships, particularly with girls, because of his low self esteem. On the other hand, Mr. Vetterlein particularly, who is clearly a very good friend to M., agreed that if M. finds that he cannot solve particular practical problems for himself he comes to Mr. Vetterlein who sorts things out for him. He also expressed the view that he did not think that M. would do anything silly with money now because of the good influences that surround him, although he would be worried how M. would deal with a substantial sum of available cash because of the possibility that he might succumb to unscrupulous people. However he does think that M. could handle an allowance of perhaps £1000 a month, and he agreed that his house is secure because M. regards it as his refuge from the world, and has never even suggested the possibility of selling it, or of seeking to raise money on it.
52. It is, however, when one turns to the voluminous records of Martin Lister's activities over the last twenty years, contained partly in his diaries, but in my view more significantly in the enormous output of letters and documents composed by him over that period that aspects of his character, personality and intellectual and cognitive functioning emerge that show him in a more positive light than the view that his parents appear to have of him.
53. Although the diaries go back to 1983, it is perhaps convenient to start by considering the period between Summer 1986 and Autumn 1987 when Mr. Wilks was preparing his case for the trial of the original action, and the period immediately surrounding the final negotiations for settlement. This is, after all, a crucial period when considering the present issue. It is apparent from the files that once M. had achieved his majority, the bulk of the letters written by Mr. Wilks were to him. The attendance notes of telephone conversations are mostly headed as being with M., and I accept Mr. Wilks' evidence that these would indeed be conversations with M. himself, and not his father. Equally, I do not doubt that M. discussed matters with his father extensively, and that his father had considerable input into the letters that M. wrote to Mr. Wilks on various matters arising. Those letters are, on the face of them at least, entirely logical and sensible.
54. On 24th June 1986 M. spent one and a half hours with Mr. Wilks' managing clerk, Debbie Emery, who took a statement from him relating to his loss of amenity since the accident. A draft was duly prepared and sent to M. for his approval on the 1st July. It is apparent that some amendments were made and the final draft was sent to M. by Mr. Wilks on the 11th July. The drafts are no longer available but the final statement is in the bundle; it is signed by M., dated 15th July 1986 and runs to nine pages. It is a coherent, connected and entirely comprehensive description of his everyday life and the difficulties that he labours under. Mr. L. stated his belief that he and M. must have discussed what M. was going to say before the 24th June, and that they almost certainly discussed the draft thereafter; that I do not doubt, but I find it very difficult to think that this statement was in any sense Mr. L.'s composition. He was not present when M. attended upon Debbie Emery on the 24th June; she no longer works with Brutton & Co., and she was not called as a witness. However, if she had had any problem in taking M.'s statement, or if the final statement had differed significantly from the original draft, I would have expected some note on the papers to that effect, and there is none.
55. Mr. Wilks sent the Schedule of Special Damages to Mr. L. for approval, because, as he explained, much of the more complicated parts of the claim related to Mr. and Mrs. L.'s own losses, and not M.'s. However, M. himself undoubtedly had telephone conversations either with Mr. Wilks or Debbie Emery about the contents of the Schedule and in particular on the 1st and 2nd of June 1987 there are two attendance notes relating to queries raised by M. about the continuing loss of earnings claimed. Those notes indicate both that M. understood what the basis of the claim was and that he also understood the explanations given to him.
56. I have already referred to M.'s reaction to the payment into court and the conference that was held on the 15th September 1987. Mr. Wilks' recollection of that conference was that M. participated in the discussion fully and that he understood that the final decision as to acceptance or rejection of the money was to be his. It was Mr. Wilks' intention that M. himself should be called as a witness on his own behalf. As he was strongly recommending the acceptance of the money paid into court with a view to settlement of the action, he pointed out to me that he would have had every reason to seek the appointment of a next friend and the approval of the court if he had suspicion that M. might not be capable of understanding and appreciating the issues that had to be decided.
57. When the increased offer was made on the following day, the first person that Mr. Wilks telephoned was M.. M. referred Mr. Wilks to his father. Mr. L. senior expressed his delight and his conviction that the money should be accepted, and that he would speak to M. to that effect; but it was M. himself who, on the following day, telephoned Mr. Wilks and gave the necessary instructions.
58. When the money came in it was M. who initially lodged it in a building society. He obtained leaflets from the Anglia Building Society where he had previously had some savings in order to see what rates of interest were on offer, and his father advised that he should use the Portsmouth Building Society which, as a small local company, was offering higher rates. M. accepted this advice. In due course he and his father discussed investment and it was M. who insisted that he wished his money to be placed in ethical investments. Mr. L. was not happy about this decision but he accepted it and it was he who selected an investment adviser who specialised in such matters. At the material time Mr. L. was a member of senior management in a major multi-national pharmaceutical company and I am quite sure that he was better equipped to research a suitable adviser than was M.. Also, as he said, Mr. L. wished to be involved in any investment decisions in order to be sure that M. was not making any imprudent mistakes. When, at the end of the year, it became apparent that the investments were losing money M. (in common, no doubt with many other small investors) was bewildered; but he consulted his father for advice and clearly understood and accepted that it was in his own best interests to shift his money into more conventional vehicles. Again, it was Mr. L., through an accountant friend, who found an appropriate adviser. It is Mr. L.'s view that M. is positively frightened at the prospect of having to make decisions of this importance, and questions what would have happened if he had not been available to give advice and guidance, but he accepted that in such circumstances M. would very probably have accepted the offer of investment advice that Mr. Wilks had made to him, and failing him, would probably have consulted his bank manager.
59. While M. was working at British Aerospace, he was living with his father who imposed a financial discipline upon him by requiring some payment for his lodging. In addition, no doubt at his father's suggestion, M. made an arrangement with his employers whereby he drew a modest sum for pocket money in cash from his salary and the balance was paid into his bank from which it was transferred by standing order to a building society. Although in fact, as I have already indicated, the bank statements show that he always kept his credit card spending within the permitted credit limit, and always paid off the bills in the permitted period, his father believes this was because of the discipline he imposed upon him, under the threat of withdrawal of the card. However, there is no evidence that I have seen to indicate that M.'s self-discipline in relation to his finances in any way changed when he left home and moved into his own house. That he had some difficulties is doubtless explained by his very modest income after 1992; but in 1996 he moved his account (possibly for ethical reasons) from the Nat.West Bank to the Co-op Bank, and doubtless on his father's advice, arranged that he should have no overdraft facility. Nevertheless, he still has a credit card, and again it appears that he keeps his spending within its limits.
60. Quite apart from the action arising out of his road accident, M. has been no stranger to litigation since 1983. In 1992 he made a claim upon a local firm of office equipment suppliers for a refund of some £2000 on the purchase of some computer equipment. When he received no satisfaction he instructed his brother-in-law to bring proceedings and one of the documents downloaded from his computer records the very detailed instructions that he gave. Unfortunately, the company in question went into liquidation, so M. made a claim on his credit card issuer, Access, and recovered the money. His letter of 20th March 1996 to Access is indicative of the clarity and logic of his thinking.
61. In about 1989, when on an outing with some hunt saboteurs, M. was attacked by supporters of the hunt. His car was damaged and he himself suffered a broken nose. As a result, he, through Mr. Knowles, brought proceedings against two named hunt supporters for damages for assault, and also sought to bring a private prosecution against them. When those proceedings ran into difficulties over questions of identity, he made a claim on the Criminal Injuries Compensation Board and recovered an appropriate sum by way of compensation.
62. Also, arising out of this incident, the magazine "Private Eye" enlisted M.'s help as a witness in relation to a libel action brought by the hunt supporters against the magazine as a result of an article relating to this particular incident. Much as I suspect to M.'s disappointment, the magazine ultimately settled the claim, and he did not get his day in court.
63. In about 1995, M. went on a demonstration at Shoreham Docks to protect against the exporting of live animals to the continent. There was a fracas, as a result of which he was arrested and charged with assault on the police. It appears that at the Magistrates' Court his counsel was able to demonstrate, by reference to M.'s physical disabilities, that the complaining police officer was something of a stranger to the truth, and he was acquitted. As a result, and again I do not doubt with the assistance of Mr. Knowles and the support of his father, M. took proceedings against the Chief Constable of Sussex for damages for malicious prosecution, and in due course that action was settled by the Police Authority for a substantial sum of money.
64. Mr. Knowles is M.'s solicitor in the present litigation, but he has not given evidence.
65. In 1992, when his parents moved to Winchester, M. determined to leave the family home and buy his own house. This was against his parents wishes, who would much have preferred him to remain with them, but he made this decision for a good reason - namely, that his defects of memory meant that he would have great difficulty finding his way around a new and strange area and he preferred to remain in the area where he had grown up, which was familiar to him. His mother assisted him through the mechanics of the house purchase, and also, as mothers will, with the problems of decorating, furnishing and fitting out his new home; but one incident occurred which to my mind throws a considerable light on M.'s ability to organise his financial affairs. In order to finance the purchase of the house he sold his various investments, and transferred the money back into a building society pending completion of the purchase. On or immediately before the date for completion, it was found that some of the money had either not arrived with the building society or had not been deposited long enough to allow him to withdraw it again, and he was £2000 short of the full purchase price. The staff at the building society suggested that he would have no difficulty in obtaining short term bridging finance in that modest sum in order to enable him to complete his purchase, and M. acted on that advice and went to his own bank for such a loan. His father suggests that this is another example of irrational thinking in that M. could and should have simply asked his father for the necessary finance which would have been available free of charge, while the bank charged £70 administration charges. While this may be an example of dealing with a problem in a less than totally cost-efficient way, it does seem to me to illustrate that M. not only understood what the problem was, but also understood and accepted what was perfectly reasonable advice as to how to deal with it, and was able to act upon and carry out the necessary transactions in order to follow that advice. He may well also have felt a natural reluctance to rely upon his father for finance, but preferred to demonstrate his own independence. Mr. L. accepts that he had no input into this situation as he was not aware of it at the time.
66. His parents worry about exploitation of M. by his friends and acquaintances in such extreme movements as at the Animal Liberation Front and Hunt Saboteurs. That M. is aware that he is being so exploited is clear from letters that he writes to various friends complaining of the cost of the journeys that he embarks upon and the failure of his passengers to pay their share. It seems clear that his enthusiasm for these movements is such that he is willing to incur this sort of expenditure, without the prospect of reasonable remuneration. There is no evidence that he has ever contributed extravagantly to the funds of such movements; the highest sum he ever appears to have paid away was in 1989, when he still had access to a considerable fund of cash and was working at British Aerospace, when he made a £500 donation to the Vegan Society. This is undoubtedly a consuming passion of his, and it appears that the sum was made up partly of a life subscription, and partly by a response to an appeal for funds at a time when the Society was in considerable financial difficulties. I cannot see that such an act of generosity could possibly be interpreted as irrational, or in any way supporting a suggestion that he was unfit to manage his affairs. An approach in the street by representatives of the Scientology movement was apparently peremptorily rebuffed.
67. In an illuminating passage in his evidence, his father said that he could not believe that a boy who had been brought up so happily and in such a conventional way would develop such extreme views about some "shifting mechanism" in his brain, and that the only thing that had ever happened to him that could produce such a result was the accident. Quite apart from the fact that such a view is not sustainable medically, it illustrates the underlying reasoning that govern his parents' approach to him, and explains what Mr. L. accepts is a highly protective attitude.
68. On his involvement with veganism and the Vegan Society - it appears that he has been a vegan since 1982, and he joined the Society in 1987. It is apparent from his diaries that he regularly drives to London to attend meetings and in September 1991 he stood for election to the Council of the Society, supported by an accountant and a barrister. On that occasion the election was contested and he was not successful, but he made a speech at the annual general meeting of the society and in the following year he was elected unopposed for three years. He resigned after he had been arrested and charged in relation to the Shoreham affair, giving as his reason that he did not wish to bring the Society into disrepute. He stood for election again in 1997 and was again elected; he took office for three months and then resigned again - his reason on this occasion was that his preoccupation with this litigation and the action against Sussex Police was occupying so much of his time that he could not properly attend to Council affairs. Nevertheless he has recently been asked to stand for election to the Council again. On the occasion of the Vegan Society's 50th anniversary he was asked to make and did make a speech to mark the occasion to the Portsmouth Animal Rights Group. A candidate for the chairmanship of the Society asked M. to propose him for election which M., very flattered, did; but his father records that he was quite pleased that this candidate did not succeed because he did not think he was a very nice man.
69. This information is all gleaned from M.'s diaries; I have not had any direct evidence of M.'s abilities and contributions to the activities of the Society; but the comment is made, I think justifiably, that it is really rather surprising that M. should receive such marks of approbation from the membership of such a society, if, as is asserted on his behalf, his mental disabilities are such that he is unfit to manage his own affairs.
70. On more abstract matters, there is evidence that M. has a perfectly adequate grip upon matters of morality, public order and the interests of vulnerable members of society. In 1992 he was a member of a naturist swimming club organised by two vegans. During a visit to the swimming pool in December of that year he became very concerned at the possible exposure to sexual abuse of three young girls, and drew the attention of the proprietors to a potentially serious problem. They asked him to say nothing in case the club should be closed down. M. obtained the name and address of the person responsible for the young girls and their ages and went to the police. He was profoundly distressed at having to take such a course, but nevertheless co-operated fully with police investigations, and concealed the steps he had taken from the proprietors of the swimming club. In so doing he displayed a high degree of responsibility; he recognised the existence of a problem, and when he realised that it was not going to be dealt with in the way that he would have preferred, took what was doubtless to him the less attractive course of involving the authorities.
71. The letters that I have been shown include lengthy ones to the Vegan Society and the Animal Liberation Front discussing and commenting upon various internal upheavals and disputes within those movements, and offering advice as to how such matters could best be resolved. Other letters seek support, particularly from the A.L.F. press office, for supporters to attend hearings in the various criminal proceedings brought against him and other friends. There are many many letters to friends, acquaintances and other persons in whom he is interested which are of a generally gossipy and discursive nature. These letters, whilst shot through with sardonic and some might think somewhat adolescent wit, nevertheless show a clear grasp of current events, and are coherent, logical and organised. Some offer good advice to friends and relations - he writes to one advising her how best to approach the D.S.S. to apply for and then maximise her Social Security benefits, and reminds her of the importance of enlisting the support of her G.P. He advises another upon a technique to discourage sexual harassment at her work. In December 1992, for another friend, he drafted a speech on vegetarianism that she was required to give; and to another he wrote a letter advising her against withdrawing her child from school for education at home. His father points out that many of these problems were discussed with him or his mother - and also that the writing of the letters sometimes extends over several days. Both these observations may well be true, but his parents do not suggest that they wrote these letters themselves, an given that letter-writing is one of the ways in which M. fills what would otherwise be interminable blanks in his everyday life, I am not surprised that he takes a considerable time to write some very long letters. The letters themselves paint the picture of a man who is fully on top of topics that interest him and well able to apply his mind to analyse and give sensible advice about the problems of others of whom he is fond. Perhaps the most striking example of this are two letters that he wrote to his nephew Oliver. In August 1998 it would appear from the letter that there was concern that Oliver, who was away at boarding school, was not eating properly and M. wrote a letter stressing the importance of good nutrition and, predictably, extolling the benefits of vegetarianism. The letter is written at precisely the right level of jokeyness to catch the attention of a schoolboy, but is closely argued, logical and very persuasive. An even more impressive example occurs in 2000 when it would appear that Oliver was very unhappy at school and it was feared by his family that he might drop out. M. wrote a most remarkable letter describing his own unhappy life, about the opportunities that his misfortunes had denied him and stressing the importance for a full and satisfying life of education and qualification. He also gives some good advice about crime, drinking and smoking. The letter requires to be read in full to get the full flavour of it, but in my judgment it is a letter that any adult could be proud of writing when seeking to guide and advise a young person going through the storms of adolescence.
72. When that letter was put to Mr. L. in cross-examination he originally said that he remembered the problems that gave rise to it and that he had discussed the points that M. should make when writing the letter. Later in his evidence he suggested that most of the letter was effectively written by him. I do not accept that. From the other letters I have seen the style is unmistakably M.'s when compared with many other letters into which Mr. L. claims to have no input whatever, and when claiming virtual authorship I am satisfied that Mr. L., maybe unconsciously, is unfairly deprecating the true level of M.'s abilities.
73. Perhaps most startling of all, in the light of the contentions put forward on his behalf, is the fact that M. has recently been accepted as a member of the Samaritans organisation in Southampton. For this purpose he underwent an interview, an induction course and a period under supervision, but he is now operating independently at the control centre in Southampton taking calls himself. It is pointed out on his behalf that the help given by individual Samaritans is not intended to be advisory in nature, but has the function more of providing a friendly and sympathetic listening ear to people who may often be in a state of desperation. That is no doubt true, but the fact that M. has been able to satisfy what are no doubt demanding standards of sensitivity sympathy and responsibility seems to me to cast a flood of light upon the true level of his cognitive and intellectual functioning. It seems to me to be a matter of huge credit to him that he has been able to take on such work and very sad that those acting on his behalf, although no doubt with the best possible intentions have thought it appropriate to talk down his achievement.

Conclusion

74. Mr. L. suggests that all this evidence is to be discounted on the basis that M., while able to offer wise and useful help to others in difficulties is unable to provide the same service for himself. I simply do not accept that contention. I appreciate that problems that concern oneself may well give rise to a higher degree of tension than other peoples' problems which are always said to be easier to resolve. But the evidence of the last 20 years enables me to arrive with confidence at certain conclusions. So far as the ordinary incidents of life are concerned such as feeding and caring for himself and the ordinary incidents of day to day living, M. is perfectly capable of looking after himself with a minimum of outside assistance. When greater problems present themselves he is able to recognise that such problems exist, and his reasoning faculties enable him to deal with a good many of them himself. Where more formidable problems arise he recognises that they exist, is able to recognise that he needs external advice to deal with them and is able to go to appropriate sources for such advice - generally his mother and father, but his sources are by no means limited to them. As a result, he has survived for the last 20 years without any major or even minor catastrophe, and his affairs have in fact been managed perfectly adequately. They may well have given rise to greater anxiety on the part of himself and others than would otherwise have been the case, and problems may have been resolved less quickly and les efficiently than in the case of a person who does not have M.'s difficulties. But the reality is that the anxieties expressed by Professor McLellan in 1987 have been demonstrated by experience to be unfounded. Further, while the mental disorders identified by the various medical experts in the present proceedings are of such a nature that, if present to a sufficiently severe degree, are undoubtedly capable of rendering a sufferer incapable of managing his property and affairs, the conclusion that I have come to on all the evidence before me is that the degree and extent to which M. suffers from such disabilities falls far short of that standard. Indeed, even if I were to accept the approach that Ms. Cox invited me to take to the resolution of the issue under consideration, I would not have felt able to hold that M. was sufficiently vulnerable to the risks of unwise decisions, bad advice or self interested and manipulative persons to justify the inroads upon his personal freedom and autonomy that are implicit in a declaration rendering him a Patient within the meaning of the Mental Health Act 1983.
75. For all these reasons, my determination of these preliminary issues is that M., since at the latest the year 1983 has been fully capable of managing and administering his property and affairs, and that at no time since that date has he been a patient within the meaning of the Mental Health Act 1983.