Neutral Citation Number: [2006] EWHC 2895 (QB)
Case No: HQ06X01432
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/11/2006

Before :

MR JUSTICE STANLEY BURNTON
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Between :

	KUNAL KARL LINDSAY	Claimant	
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	KENNETH ARNOLD WOOD	Defendant	

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John Greenbourne (instructed by Taylor Vinters) for the Claimant 
Glyn Edwards (instructed by Lyons Davidson) for the Defendant

Hearing date: 24 October 2006
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Judgment
Stanley Burnton J : 
Introduction 
1.	On 1 September 2002, the Claimant, Kunal Lindsay, was riding a motorcycle along the A44 road. The Defendant, driving a car in the opposite direction, turned to the right in front of him.  In the ensuing collision, the Claimant suffered serious brain injuries.  The Defendant's insurers have admitted liability in full, and unless a settlement is reached in the meantime, the issue of quantum is to be tried on 26 February 2007.  It is now common ground that as a result of his injuries the Claimant will never work again.  The damages awarded are likely to be very substantial indeed.
2.	Doubts having arisen as to the capacity of the Claimant, his solicitors and counsel have properly brought before the Court the preliminary issue as to his capacity to conduct this litigation and the separate issue of his capacity to manage the sum that will be awarded by way of damages. By the order of District Judge Taylor dated 4 April 2006, it was ordered that there be a trial of the issue whether the Claimant is a patient within the meaning of Part 7 of the Mental Health Act 1983 and CPR Part 21. This is my determination of that issue.
3.	Mr Greenbourne, for the Claimant, did not present a positive case one way or the other. The Claimant is neither seeking a finding that he is a patient nor that he is not. However, at this important juncture in the litigation, it is essential that the Claimant’s solicitors and counsel know whether or not they may take instructions from him. Since the damages payable by the Defendant are liable to be increased if the Claimant is a patient, it is not surprising that Mr Edwards submitted that the evidence does not establish that the Claimant is a patient. The forensic result of this imbalance was unfortunate. The onus of proving that a person is a patient lies on the person who asserts it. In this case, neither party did so assert. 
4.	In my judgment, in cases such as the present, where understandably the Claimant’s legal team are unable to present a positive case, consideration should be given to seeking an order of the Court directing the Official Solicitor to consider the evidence, to appoint his own medical expert if he sees fit, and to appear and to make such submissions as he considers appropriate on the hearing of the issue.
The background
5.	The claimant was born on 10 April 1978.  He is therefore aged 28.  In August 2001, he began to live with Susan Hooper, who subsequently became his wife.  She is an Australian national. Following the accident, he was treated in England and in Germany.  He and Miss Hooper were married on 24 April 2004.  On 31 March 2004, on the advice of his solicitors, a discretionary trust was established to receive interim payments made by the Defendant's insurers.  He is the settlor of the trust; the trustees are two members of his firm of solicitors. Various sums, the largest of which has been £50,000, have been paid into the trust.
6.	In March 2005, Mrs Lindsay gave birth to the couple's son Jesse. 
7.	In November 2005, Mrs Lindsay went with Jesse to Australia for a six-week respite period.  However, they returned after four weeks.
8.	In September 2006, Mrs Lindsay with Jesse went to live permanently in Australia.  The Claimant requires a visa to visit or to live in Australia.  He intends to go to Australia shortly on a three-month visa, returning to this country in time for the hearing in February 2007.
9.	It is common ground that if any substantial sum is paid by way of damages to the Claimant, the only prudent course would be for it to become subject to the existing discretionary trust or to be the subject of a similar trust. The Claimant could not himself sensibly deal with such a sum.
The nature of the issue
10.	Part VII of the Mental Health Act 1983 is concerned with the “Management of Property and Affairs of Patients” and the jurisdiction of the Court Protection.  A person is a “patient” “where, after considering medical evidence, (the judge) is satisfied that a person is incapable by reason of mental disorder of managing and administering his property and affairs”.  That definition is effectively incorporated in Part 21.1 (2) of the CPR:
(b) “Patient” means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs.
11.	It is undisputed, and quite clear, that as a result of the accident, the Claimant suffers from a “mental disorder” within the meaning of the 1983 Act. 
12.	The law relating to capacity was helpfully clarified by the Court of Appeal in Masterman-Lister v. Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889 and [2003] EWCA Civ 70, [2003] 1 WLR 1511. Every person is presumed to have capacity. The onus is on the person alleging incapacity to establish it. A finding that a person lacks capacity is a serious matter, since it deprives him of basic human rights, namely the power to make decisions as to his own affairs and assets. Many people of full capacity make rash decisions, or cannot be trusted to manage their money sensibly. Thus these qualities or deficiencies do not necessarily lead to a finding of incapacity. Capacity must be assessed on a transactional basis, i.e. having regard to the transaction or transactions in respect of which the person’s capacity is to be assessed, or, as the Mental Health Act 1983 puts it, in relation to his property and affairs. Thus a lesser degree of capacity will be sufficient in relation to relatively uncomplicated transactions or property or affairs; a higher degree is required for more complex transactions. The Court of Appeal approved the exposition of Boreham J in his unreported judgment in White v Fell:
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 that 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 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 … 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 … 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 … 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.
13.	See too the citation at [23] from the judgment of Mr Martin Nourse QC (as he then was) in In re Beaney decd [1978] 1 WLR 770, 774. The Court of Appeal approved the summary of Wright J, the trial judge, that the court should only take over the individual’s function of decision making:
“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.”
14.	Of importance in the present case is the following passage from the judgment of Kennedy LJ, at [21] which I understand to express his views rather than the submissions of counsel:
“… the focus must be on the capacity or ability of the individual and not upon the actual outcome. A litigant who meets the criteria for capacity should still be regarded as a patient even if it can be shown that he has in fact made wise decisions and taken good advice. What he has done is relevant but not determinative in considering whether the criteria are or were satisfied at the relevant time.”
15.	The Court accepted the following submission of counsel for the Official Solicitor:
26. … Mr Francis submitted that a person's ability to manage his or her property and affairs requires an ability to make and communicate, and where appropriate give effect to, all decisions required in relation to them. So the mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision. Mr Francis further submits that the court should have regard to the complexity of decisions under consideration but not to the court's own valuation of the gravity of those decisions because it is not for the court to decide in a non-medical treatment case what is or is not serious in the life of the person before it.
16.	Legally, capacity in relation to a particular transaction (see Kennedy LJ at [27]) is all or nothing: either a person is a patient within the meaning of Part VII of the Mental Health Act 1983 and CPR Part 21 or he is not. But the law recognises that medically there is a spectrum of disability. A person’s capacity to manage his affairs may be reduced by a mental disorder without his ceasing to have capacity. There are clear cases, which are at one extreme of the spectrum or the other, where it is clear that a person has or has not capacity. In other cases the extent of disability is questionable. The present is not a clear case.
17.	I was told by Dr Leng, the consultant neuropsychologist called by the Claimant, that paragraph 78 of the judgment of Chadwick LJ in Masterman-Lister has caused difficulty to medical practitioners. Chadwick LJ said:
78 Wright J … rejected the submission, advanced on behalf of the plaintiff, that a finding of incapacity was required "if the effect of the injury to his brain renders [the plaintiff] vulnerable to exploitation or at the risk of the making of rash or irresponsible decisions". I think that he was right to do so. The courts have ample powers to protect those who are vulnerable to exploitation from being exploited; it is unnecessary to deny them the opportunity to take their own decisions if they are not being exploited. It is not the task of the courts to prevent those who have the mental capacity to make rational decisions from making decisions which others may regard as rash or irresponsible.
Medical practitioners understood this to mean that vulnerability to exploitation is irrelevant to the question of capacity, and must be ignored by them when deciding whether in their opinion a person lacks capacity. 
18.	I do not think that that is a correct understanding of the judgment of Chadwick LJ. When considering the question of capacity, psychiatrists and psychologists will normally wish to take into account all aspects of the personality and behaviour of the person in question, including vulnerability to exploitation. However, vulnerability to exploitation does not of itself lead to the conclusion that there is lack of capacity. Many people who have full capacity are vulnerable to exploitation, or more so than most other people. Many people make rash and irresponsible decisions, but are of full capacity. The issue is, as Chadwick LJ himself indicated in the above passage, whether the person concerned has the mental capacity to make a rational decision.
The evidence
19.	The Claimant was informed that he could give evidence if he wished to do so. He did not do so.
20.	Whether the person whose capacity is in issue should give evidence is ultimately a matter for him and his legal advisors. In my view, the Court should be cautious before it indicates (see Masterman-Lister at [17]) that his evidence would be of assistance, and all the more so if he gives evidence when considering what weight should be placed on it. There is a risk that the judge will give undue weight to his own relatively uninformed assessment, made in highly artificial circumstances, as against the opinions of professional medical experts, and in particular psychiatrists and psychologists, and the evidence of persons who have observed the person in question in more ordinary conditions. It was for this reason that I did not urge Mr Lindsay to go into the witness box.
21.	The lay evidence consisted of the witness statements of Mrs Lindsay, Denis Corbett, who knew the Claimant before his accident and in whose motorcycle yard he has worked after the accident, and of Mark Lindsay, the Claimant’s father.
22.	Regrettably, Mrs Lindsay was in Australia. No video link had been arranged, and therefore she could not give live evidence and or be cross-examined. I have to make an assessment of the weight to be given to her evidence and the extent to which I can or should rely on it. For this purpose I have had regard to the evidence as to her relationship with the Claimant and her behaviour to him since the accident, the content of her witness statement and its consistency or otherwise with other evidence.
23.	Mrs Lindsay is a qualified professional social worker. Taking into account the effect of the Claimant’s injuries on his personality, Mrs Lindsay has demonstrated a remarkable degree of support for her husband since the accident. This included her accompanying him to Germany during the time he was treated at the Oliver Zangwill Centre. The decision to have a child after the accident speaks of her desire to maintain her relationship with him. Her decision to return to Australia is entirely understandable given the lack of any family support here. She is at least on the face of her statement candid in her observations as to the future of her marriage. It would have been all too easy for her to have given evidence as to its lack of future with a view to maximising his claim: she has not done so. There are important differences between her evidence and that of the medical witnesses; but the latter agree that the behaviour of a person outside the consulting room may differ significantly from his behaviour in the artificial circumstances of a medical consultation. Her evidence as to the Claimant’s obsession with his mobile telephone, lack of recall and lack of concentration is supported by that of Mr Corbett. It is true that what she says about his using his telephone during medical consultations is not supported by the medical witnesses I have heard; but that is not to say that other treating doctors might not have seen it. 
24.	For these reasons, while bearing in mind that it has not been tested by cross-examination, I shall treat Mrs Lindsay’s witness statement as generally reliable.
25.	Mrs Lindsay gives cogent evidence of the Claimant’s lack of motivation, distractibility, irascibility, lack of judgment, disinhibition and poor recollection. I was particularly struck by the following passage in her witness statement:
“52. Getting Kunal out of the house is usually the next challenge.  He needs repetitive prompting to get through the basic tasks of self care and everything takes a great deal more time than it needs to.  I need to keep reminding him about what time we need to be out of the house for appointments and give him regular reminders of how much time is left before we need to leave.  This is often the source of some friction with Kunal getting angry with me because he does not like feeling that he is being rushed.  Even when we think that we are just about to leave the house he quite often has to suddenly go to the toilet or he will think of something that he has forgotten that he cannot do without.
53. Kunal needs frequent reminders about where we are going and why we are going there.  If we go out walking with Jesse in the buggy Kunal will often go off in the wrong direction.  He never appears to take any account of where he is or where we are going.  He talks non stop and therefore does not listen when I am telling him which direction we need to go in.  I am now very used to telling him several times what we are about to do before we actually do it to get him ready.  Often he will still not have listened.
54…Most importantly however it is down to me to remind Kunal why we are out, what we are doing and keep him focused on that.  If he was not accompanied and supported in this way then he would simply not get anything done and would drift around, regularly getting lost and achieving nothing.
55…Even in important meetings with doctors and solicitors I will see him trying to send a text whilst someone is talking to him.  He will hold the phone under the table as if no-one will notice….there is no way that, whilst he is distracted in this way, he can take in any information being given to him although he insists he can.”
26.	In paragraph 58, she refers to his visits to the gym:
“58…On the day when he goes to the gym I will take him down to the health club but will sometimes leave him to make his own way home.  He has done this successfully a few times but on every occasion he will speak to me on the phone as much as ten times on the walk back and will often be lost.”
27.	In relation to spending, she says:
“57. Going out shopping with Kunal is what I imagine it is like shopping with a young child.  He wants to buy everything without any thought for the cost or our budget and will often try to bully me into buying things.  He gets angry with me or makes nasty remarks even when I am saying no for a good reason.  It is entirely down to me or his support worker to sit down with Kunal and draw up a list of what is needed.  Kunal is incapable of doing this on his own.  Even with a detailed list he could not reliably follow it if he was not supported and undoubtedly would add many unnecessary items to the shopping without reference to its cost.”
28.	Mrs Lindsay expresses concern as to the Claimant’s use of cannabis, which 
“he is entirely unable to handle the effects of…and smoking the drug renders him totally dysfunctional.”
She refers to the fact that he will drive his trike on the road, against medical advice, without any insurance, and knowing that he risks his own and others’ lives.  She says that this is one of the reasons why he requires constant supervision. She says that:
“ I also know that if Kunal and I were to separate he would need full time support in order for him to be able to live independently with any kind of quality of life.”
29.	Mrs Lindsay refers to his inability to manage their finances, his inability to compromise in relation to his use of his telephone, cannabis, or his motorbike, and his susceptibility to the influence of others (exemplified by his purchase of a staple gun, an item which he had never used, on the telephone, and his forgetting that he had done so). He is, she says, unable to concentrate, and at important meetings will:
“drift off and be distracted by his coffee or the biscuits on the table”.  She concedes, however, that “in a structured setting, largely free from distractions, he has proved willing to listen and to take advice in relation to his financial affairs. The discretionary trust is an example of this.”
30.	Mr Corbett states:
“(The Claimant) needs to be supervised for every second of the time that he is in the (motorcycle) yard.  The reason being, if not, he will simply go ‘off task’.”  
Mr Corbett gives an example of this behaviour.  He confirms the Claimant’s fixation with his mobile telephone and says:
“I imagine that his use of the mobile telephone is excessive not only because he seems to be fixated with it but also because of memory difficulties.  I have had first hand experience of this because on occasions he will send me a message to do with something at work, not in work time, but not only does he send me the message in one occasion, he will send it three or four times.  It is the same message and the only explanation that I can think of is that he forgets that he has actually sent it and re-sends it.”
Mr Corbett concludes, in paragraph 18 of his statement, as follows:
“18. In short, and to be quite blunt, I consider that Kunal is unemployable.  I do not believe that it would make sense economically for an employer to employ Kunal to work because he would then need somebody to work with Kunal on a one to one basis to prompt him to start, continue and eventually complete a task.  In effect, the employer would be employing two people to undertake the task that one person could do himself.  That simply is not economically viable. 
19. I consider that Kunal is unemployable.  I do not believe that he would obtain any form of paid employment no matter how sympathetic an employer was.  The simple reason is that he would need one to one supervision 100% of the time that he was at the employer’s premises.”
31.	The Claimant’s father summarises his condition as follows:
“55 Kunal has come a long way physically and emotionally since his accident.  He very clearly has significant ongoing psychological and emotional impairment.  He does not seem to be able to grasp long term issues and is unable to plan for the future.  His concentration and memory remain poor and he is easily distracted onto a very narrow band of topics.”
32.	Dr Sumners specifically considered the Claimant’s capacity in a report dated 13 August 2003.  He concluded that he did not lack capacity.  He said:
“From my examination of him I conclude that he does have the capacity to take in information, consider it, and make decisions.  This is not to say that his decisions will always be correct and one example of this may be his stated wish to continue using cannabis in the future.  Nonetheless I feel that he has the ability to understand the implications of his decisions and to take responsibility for them.  It may be that what might be regarded as bad decisions on his part are at least in some cases linked to his attitude that he does not want to be controlled by others.  I would regard this as a longstanding characteristic, which may reflect upon his family background.”
33.	Dr Sumners saw the Claimant and Mrs Lindsay again in October 2004, and produced a report dated 15 October 2004.  He said:
“… It remains my opinion that he has the capacity to make decisions about financial matters.  He believes that the present financial arrangements, through a discretionary trust, are appropriate and has taken steps to ensure that he has relatively small sums of money at his disposal, in addition to this, in order to satisfy his reasonable wishes.  This indicates to me that he recognises his own limitations and appropriately decides that others need to control the overall situation for him.  I see no reason why this situation should not continue in the event of a financial settlement in relation to the current proceedings.  This will allow a sensible management of any capital sums within the present financial support infrastructure.  However, in the absence of this set-up Mr Lindsay would struggle and possibly be vulnerable to exploitation.  It is apparent that Mrs Lindsay is a vital component of his current support…”
34.	Dr Sumners saw the Claimant again, together with Mrs Lindsay, in August 2005.  He modified his opinion.  He said:
“It is my opinion that he continues to suffer from a mental disorder, i.e. organic personality disorder.  However, in respect of the Court of Protection it is my opinion that he should not be classified as a patient at the present time.  This is because of the existence of the full discretionary trust.  However, I would consider him to be a patient in respect of the Court of Protection if it were not for the fact of the present supportive financial structure.”
35.	Dr Leigh Neal, the consultant psychiatrist retained by the Defendant’s insurers, has expressed himself more positively as to the Claimant’s capability.  He assessed the Claimant in the company of his wife in an interview that lasted two hours and 20 minutes.  He was of the opinion that “if one strictly applies the ICD-10 criteria for an Organic Personality Disorder (the Claimant) does not presently meet the criteria for this condition”.  He was unconvinced that the Claimant would be unable to work saying:
“I am uncertain as to how much he is genuinely unable to work because of his difficulty and how much it reflects a decision not to try and work until the claim is settled.”
	He also said:
“The Claimant’s marriage has been stable for several years during the most difficult period and therefore on balance they are probably unlikely to separate in future.”
36.	Dr Neal and Dr Sumners agreed a joint statement.  They agreed that the Claimant has sufficient understanding of the issues involved in managing his own financial and legal matters; however, Dr Sumners is concerned that because of his memory problem he may subsequently forget any discussions which he has had.  They thought that the fact that he had agreed to a personal injury trust showed that he had insight and understanding of the fact that he has a problem in respect of which he needs advice.  They thought he was capable of seeking an appropriate advisor.  Dr Sumners is concerned, that, due to his memory problems, he may have some difficulty in instructing the advisor, but that this problem could be overcome through support from Mrs Lindsay.  They were asked whether the Claimant has “sufficient mental capacity and analytical skills to understand, absorb and to retain and weigh in the balance such information (including the advice he may receive) sufficiently to make decisions based upon such information or advice as he may receive and to communicate his decision”.  Their agreed answer included the following:
“We agree that Mr Lindsay is suffering from a mental disorder within the meaning of the Mental Health Act 1983, i.e., organic personality disorder.  This is a direct consequence of the severe brain injury he suffered as a result of the accident of 01.09.02.  We agree this has resulted in cognitive dysfunction and behaviour disturbance.  We agree Mr Lindsay has a decreased awareness of the effects of his behaviour on others and is also impulsive. 
We agree that were it not for the control afforded by the trust over Mr Lindsay’s affairs then he would not on a day-to-day basis be capable of managing them.
Dr Sumners is, therefore, of the opinion that Mr Lindsay does not have sufficient mental capacity and analytical skills to understand, absorb and retain information such as advice he may receive sufficiently to make decisions based upon such information or advice.
Dr Neal recognises that there are situations when Mr Lindsay is alone when he could impulsively make purchases, which are not in his best interest.  However, the disposal of the funds from his personal injury action would not be available to him under these circumstances.  He would not be alone when the decision was made about putting the money into a trust fund and advice would be available.  In Dr Neal’s opinion, with regard to the situation pertinent to the disposal of these funds, he does have sufficient mental capacity and analytical skills to understand, absorb and retain information such as advice he may receive sufficiently to make decisions based upon such information or advice.
We agree that Mr Lindsay is capable of recognising that he needs a trust fund to manage the funds from this personal injury action.  If he agrees to making a further trust to take account of any settlement, then the anticipated problems will be overcome.  
Dr Sumners is concerned, however, by the possibility that Mr Lindsay may not make a further trust.  In this scenario his cognitive and behavioural problems would prevent him from managing his affairs.  This problem would be magnified if, for any reason, he did not have the support or advice of his wife or solicitors.
Dr Neal considers that the possibility that he will not agree to a further Trust fund to manage any settlement is remote.  Dr Neal agrees that should this occur his cognitive and behavioural problems would impair his ability to manage his affairs.  This problem would be magnified if, for any reason, he did not have the support or advice of his wife or solicitors.
We agree that he would be a patient were it not for the personal injury trust.”
37.	The third medical witness was Dr Nicholas Leng, a chartered clinical psychologist and consultant neuropsychologist.  He examined the Claimant in March 2004, and carried out a number of neuropsychological tests.  Having referred to the Claimant’s injuries, he said:
“Despite all of this he has made to date a reasonably good degree of recovery, which is to say certainly no worse than average, from these serious brain injuries.  However, as would be expected, he has been left with certain significant neuropsychological problems.  According to the results of formal tests, these would appear to be in some part at least of a frontal lobe type.  That is to say that he is impaired in his cognitive judgment, and his fluency is rather poor, in addition to which he is undoubtedly slow and inefficient.  There is no evidence though of any additional mental health disorder in addition to any of the problems caused by the brain injury.  Indeed, there is no report of disturbance of mood or temperament at all that often follows on from these injuries.  From a day-to-day point of view there appears to be some loss of drive, motivation, initiation and ability to carry out more complex tasks. 
…One can only put forward an interim conclusion at this point, because he is still going through the recovery process and undergoing rehabilitation and may improve further.  As it is at the moment I would predict that he will not be able to attain fully independent living, he will likely remain at very significant disadvantage in employment terms, and I think the prospects for returning to driving must be guarded, though this would need an in vivo assessment.  It is also very likely that he will not regain his financial competence.  I am somewhat concerned about the account of his vulnerability, suggestibility and ability to be manipulated, and in terms of whether he is a ‘patient’, he is at best not far from the borderline.  Certainly any large sum of money will need to be placed in a personal injury trust fund.”
38.	Dr Leng updated his report in September 2004.  In an informative passage in his report dated 28 September  2004, he sated:
“5.2.16 In cases where there is damage to the medial frontal area, the more common behavioural features are apathy, loss of motivation and flat and unchanging expression.  The patient may display a reduction or absence of interest or excitement, emotional intensity, and emotional responsiveness to events.
5.2.17 Many neuropsychological tests have been devised to try and measure these kinds of problems, which may occur in various permutations and degrees of severity.  They include tests involving concept formation, sorting, various kinds of problem solving, estimating, fluency, rapid switching of attention between doing one thing and another, ability to inhibit irrelevant information and proverb interpretation.  However, such neuropsychological tests do not necessary detect these difficulties.  This is because they are to a large extent “examiner-driven”, such that the patient is given a specific task, with specific instructions, and this structured context does not exactly mimic the less structured conditions of daily life in which the patient has to work out when something needs to be done and then initiate an activity and organise themselves in carrying it out.  One not infrequently sees patients who perform relatively well on neuropsychological tests, but manifestly are failing in day-to-day life – the so called “frontal lobe paradox”.  In contrast, a patient may demonstrate impairment on tests of executive function, yet perform at a higher than expected level in real life because they have adopted compensatory strategies.  A further difficulty is that certain aspects of mood and behaviour are difficult to measure objectively, and the examiner may need to rely upon clinical judgment and the clinical history.”
39.	Dr Leng concluded:
“6.2 His rehabilitation has now been completed.  His reasoning capabilities appear to be unimpaired, though there is some residual impairment of judgment and insight.  He performed well enough on tests of memory, though a little below the level of last time on a visual memory test, presumably due to some lapse of concentration or the effect of fatigue.  His fluency remains impaired, and he is still slow and inefficient on tests generally….It is reported that he remains with some loss of drive and motivation, and still needs a good deal of prompting, though his level of independence has increased a little since he was last examined, as predicated.
6.3 It is likely that Mr Lindsay will be by now reaching the limits of natural recovery.  Some further changes may occur over another few years, but these are not likely to be of any major practical significance.  In essence he will have to learn to adjust and adapt as best he can for the future.  He does not seem concerned about his predicament which may in part reflect his pre-morbid personality, and in part reflect some blunting of insight and concern due to damage to the front parts of his brain.
6.4 Accordingly, it is unlikely that he will ever reach independent living status and will continue to be dependent upon others to prompt him in day-to-day matters.  However, his wife reported that they have a strong relationship, and although one has to accept that unfortunately there is a significantly raised risk of martial breakdown following these kinds of injuries, I got the impression that the odds are rather better for Mr and Mrs Lindsay.  
6.5 There can be little doubt that he will remain at marked disadvantage in terms of employment.  However, he does retain some residual learning capabilities, and may well therefore be able to learn some skills, but whether he will prove at all economically productive has to be in doubt.  I would suggest a vocational rehabilitation opinion which might clarify this.
6.6 Mr Lindsay also remains at significant disadvantage in terms of being able to manage his financial affairs.  He probably just falls short of the Court’s criteria for being placed under the Court of Protection, from what I can gather, but as previously recommended, certainly any large sum of money should be placed in a secure personal injury trust fund, for he is surely vulnerable to some degree.”
40.	Dr Leng again saw the Claimant in July 2005.  In his report dated 20 July 2005, he gave the following opinion:
“4.2 I believe that the overall clinical presentation is much the same as on the last occasion, and his condition is now probably broadly stable.  There is no evidence of any lingering impairment of intellect or memory.  However, he continues to be slow and inefficient, with some weakness in his fluency.  Effort appeared to be optimal, further testing revealed no evidence of any formal mental health disorder.
….
4.7 He continues to remain at a marked disadvantage in terms of employment, and I believe this will continue to be the case for the future.  I understand that arrangements were to be made for a further work placement.  Presumably the outcome of this is awaited.
4.8 As stated previously, I do not believe that has lost capacity to the extent that his affairs should be placed under the Court of Protection, at least according to the criteria currently applied by the Court, but I do think that there is some vulnerability here and that it would be most wise to have any large sums of money placed in a secure trust fund.”
41.	Dr Leng again commented on the Claimant’s employability in a letter dated 9 August 2005. He said:
“In regard to employment prospects, I am always rather reluctant to categorically state that a patient will never return to work, this may very well turn out to be the case, and certainly, as I say, he is at marked disadvantage, and if I had to be pushed on the matter then I would say that on a balance of probabilities he will never work again, thought I should like to see the outcome of the further work placement.”

42.	Dr Sumners, Dr Neal and Dr Leng gave oral evidence and were cross-examined. Dr Sumners was unwilling to commit himself to the opinion that the Claimant lacks capacity. He expressed himself in terms of his concerns and serious concerns. If information and advice were given to the Claimant, in relation to for example a settlement offer, he thought that there is a “strong possibility” that he could not retain what he had been told overnight if asked to take time to consider his decision. He had “serious concerns” as to whether his impulsivity would lead him to make an unwise decision in relation to a superficially attractive offer. He clarified what he had meant in the joint statement in relation to the magnification of the Claimant’s problems if he did not have the support or advice of his wife or solicitors: in his view, the Claimant’s problems would be magnified if he did not have the support and advice of both his wife and his solicitors. It is relevant in that regard that the only support that the Claimant is likely to have from his wife immediately before and during the trial will be on the telephone, and that will be limited in time because of time differences between London and Australia. Moreover, as Dr Sumners pointed out, it would be far more difficult for his wife to judge his mood on the telephone and to take his mood into account when seeking to support and to advise him: face to face contact is far more effective than contact on a telephone.
43.	Dr Sumners agreed that the Claimant’s responses in neuropsychological tests may not reflect normal life. He realises he needs advice, as demonstrated by his creation of the discretionary trust. If he had money in his hands, he could not manage it, because of his impulsivity. It was not known whether, if he had money in his hands, he would seek advice. He has capacity to understand advice, but has problems in retaining it. It would be difficult for him to weigh up advice because of his difficulties in retaining it and in concentrating. He can communicate the decisions he makes. He is concerned that the Claimant would not put the moneys paid in satisfaction of his claim into trust, but cannot quantify that concern. 
44.	Mr Neal said that the Claimant recognises he has a problem, which he can articulate. He has the ability to seek advice, and he thought he would weigh it up and come to a sensible conclusion, which he could communicate. In the right situation he can be attentive and responsive, as he was with Dr Neal. He considered the absence of Mrs Lindsay to be irrelevant to the statutory test. Dr Neal thought he would probably put the damages recovered into trust, but that there was a risk, which he described as remote, that he would not do so. So far as his present assets are concerned, only the existence of the trust and its limitations on him prevent his being a patient. Dr Neal had agreed the joint statement before he had had time to absorb Mrs Lindsay’s witness statement, and he had not appreciated that she would not be present when decisions came to be made in the litigation or as to the disposition of recoveries. He thought that the Claimant would have the capacity to choose between an offer of a lump sum and periodical payments. If conflicting advice were given, he might follow bad advice, because he would not be able to assess its merits. That, however, was not the result of his mental disabilities, but was inherent in his pre-accident character: he had then made incorrect life choices, such as smoking cannabis and driving without a licence. 
45.	Dr Leng said that the Claimant seems to be one of those who do well in tests but not in everyday life. The test results of the plaintiff in Masterman-Lister (in which he had given evidence) were worse than the present Claimant’s, yet he was held not to be a patient. The tests he had carried out were not able to determine whether or not the Claimant is a patient. Dr Leng’s opinion of the Claimant, as expressed in his reports, i.e. that he is borderline but just above the level of incapacity, has not changed.
Discussion
46.	The first matter I have to address is the degree of complexity of the affairs of the Claimant. There are two areas of his affairs to be considered for these purposes. The first is the litigation. There are likely to be offers of settlement, which will require consideration by the Claimant or someone on his behalf. The Claimant can of course be guided by legal and other professional advice; but he should be able to understand and weigh that advice. Doubtless there is a theoretical possibility of an offer so generous that its acceptability is obvious. It is, however, more likely that a lump sum offer will be less than the optimistic estimates of the Claimant’s advisers. They should be able to advise the Claimant of the risks of his rejecting the offer, and the risks of his accepting it: in what areas of anticipated costs there may be shortfalls, and what would happen if the award proves inadequate.  There may be an offer of periodical payments, or more likely an offer of a lump sum plus periodical payments. And thirdly, there may be more than one form of settlement offered at the same time. The decisions to be made may not be straightforward, and may not admit of unequivocal advice, of the “In my view you should do this” kind. The Claimant may have to weigh up the advantages and risks of one course as against the other.
47.	The evidence of Mrs Lindsay indicates that the Claimant would be unable to manage any complex decisions of this nature. His lack of concentration, his distractibility, the fact that when out he easily becomes lost, his need to be reminded where he is going, his inability to carry out a work task, evidence this. In a structured setting, free from distractions, he can listen and accept advice as to his financial affairs. This is demonstrated by his decision to establish a discretionary trust to receive his interim payments. But the advice he may receive for the purposes of this litigation may be considerably more complex than the relatively straightforward advice that in view of his condition it would be prudent to place the moneys in trust. In addition, it cannot be excluded that he will receive conflicting advice from other persons with whom he may be in contact, advice that would not necessarily be disinterested. He would be unable to weigh the merits of such advice as against that of his professional advisers.
48.	I bear in mind that the discretionary trust shows that the Claimant has made sensible decisions based on professional advice since his accident, albeit with the benefit of his wife’s presence and support. I also bear in mind that he has expressed to doctors sensible attitudes to his finances, and was able to act reasonably in relation to a rent problem. But I find the evidence of Mrs Lindsay compelling.
49.	The discrepancy between the general picture given by Mrs Lindsay and that given by the medical evidence, and in particular that of Dr Neal and Dr Leng, is largely explained by the difference between “real life”, as it is described, and the artificial conditions of a medical assessment. I reject Dr Neal’s view that the Claimant’s vulnerability to bad advice and inability to weigh up such advice pre-dates his accident, and is not a consequence of his brain injuries. Dr Neal’s view is not based on any knowledge of the Claimant from before the accident, but on his history, which is less than comprehensive so far as his pre-accident personality is concerned. It is inconsistent with the description of the Claimant’s behaviour and conduct in paragraphs 11 to 18 of Mark Lindsay’s witness statement, which I accept as accurate. The evidence of Mr Corbett indicates that Dr Neal and to some extent Dr Leng have underestimated the degree of the Claimant’s incapacity, particularly in relation to his ability to work, doubtless in part because of the differences between clinical and normal conditions and performance. Dr Leng was of the view that he “falls just short of the Court’s criteria for being placed under the Court of Protection”. The correction that I consider must be made to his opinion brings the Claimant within those criteria. Moreover, the Claimant will be without the support and advice of Mrs Lindsay, otherwise than on the telephone. If offers for settlement are made while the Claimant is in Australia, and have to be responded to while he is there, the difficulties will be exacerbated, because he may well not be in “a structured setting, free from distractions” there. 
50.	I accept Dr Sumner’s view, expressed in the joint statement (from which Dr Neal resiled to some extent) that but for the discretionary trust the Claimant would be a patient in relation to his affairs. It is, I think, common ground that if the Claimant were to refuse to place a lump sum award in trust, he would be a patient. I do not think that it is right to proceed on the basis that he will necessarily agree to place such an award in trust. What I have to determine is not whether he will accept the advice he is given, but whether he can absorb and weigh the advice he is likely to be given and make a rational decision on it. 
51.	My conclusion is that the Claimant is unable to deal with the advice he is likely to receive or to give reliably rational instructions based on that advice. I therefore find that he is a patient within the meaning of Part VII of the 1983 Act and therefore within CPR Part 21.