Loughlin v Singh & Ors: Assessment of Capacity – Conflict of Interest?
Any application to the Court of Protection in relation to an individual is commenced by a COP1 application form supported by a COP3 assessment of capacity form. It is usual for the COP3 to be completed by a medical practitioner whose role it is to advise the Court of Protection Judge. The relevant forms and guidance notes can be found here: Details for form COP Application pack 3
The involvement of the Court of Protection is an extremely serious matter. Deprivation of autonomy is not to be taken lightly but, in the context of large personal injury claims is there a potential conflict of interest?
In this morning’s decision in Kristopher Loughlin (By his mother and litigation friend Barbara Anne Kennedy, formerly Loughlin) v (1) Kenneth Dal Singh (2) Pama & Co Ltd (3) Churchill Insurance Company, Parker J was extremely concerned by the invidious position in which the Court of Protection Judge had been placed:
"All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision."
Litigation Department vs. Court of Protection Department:
In January 2009 upon the instruction of the litigation solicitor within Pannone LLP who were acting for the Claimant, Professor Barnes produced a report in which he concluded that the Claimant retained capacity to conduct the litigation and manage his financial affairs.
Meanwhile the Court of Protection Department at Pannone had independently commissioned their own report from Dr Alice Huddy who also concluded that the Claimant retained capacity.
No further action was taken by the Court of Protection team who, satisfied with the report which they had received, proceeded to close their file of papers until such time as the litigation department provided them with a further report from Professor Barnes dated October 2009 which concluded that the Claimant lacked capacity to conduct the litigation and manage his financial affairs.
As ultimately became apparent during the course of the trial Professor Barnes' reports of January and October 2009 were identical save for the date and his complete U-turn in respect of capacity. There was no additional evidence relied upon by Professor Barnes to explain his "volte face" which followed a telephone conversation with the litigation solicitor on 25th September 2009.
Oblivious to this "volte face" the Court of Protection team duly asked Professor Barnes to complete the COP3 form and in due course District Judge Eldergill of the Court of Protection appointed Hugh Jones as the Claimant's deputy by virtue of an Order dated 28th April 2010. Ignoring [which is the subject of separate discussion] Professor Barnes' willingness to pronounce on the Claimant's capacity without there being any evidence that he had undertaken a proper assessment, the issue which concerned Parker J on this aspect was the action of the Court of Protection department in pursuing the COP1 application when they were aware of the contrary opinion provided by Dr Huddy and yet failed to draw that opinion to the attention of both Professor Barnes or District Judge Eldergill who was placed in the invidious position of being asked to make an Order without being made aware that a range of opinion already existed as to the Claimant's capacity.
Parker J’s Annex to the judgment states:
It is also appropriate to consider how the issue of capacity was presented to the Court of Protection. There had been communication between the litigation and Court of Protection departments at Pannone in August and September 2008. Where a prospective client is bringing a personal injury claim, the litigation department would ordinarily obtain evidence on capacity. For reasons that are unclear, each department in this case separately commissioned its own medical evidence on capacity. The Court of Protection department obtained an opinion from Dr Huddy, to the effect that the Claimant had capacity, and the litigation department from Professor Barnes. By the end of March 2009 each department, therefore, had medical reports that the Claimant had capacity. Mr Jones, the partner for Court of Protection matters, closed his file, not having been sent a copy of Professor Barnes’ report dated 22 January 2009 (which, it may be recalled, stated also that the Claimant had capacity). Subsequently Mr Jones re-opened the file when he was sent a copy of Professor Barnes’ later report dated 6 October 2009 (reversing his earlier assessment), whose conclusions were now at odds with those expressed by Dr Huddy.
Professor Barnes was not sent a copy of Dr Huddy’s report at any stage. District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant’s deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy’s report, nor did he have any inkling of the circumstances, set out in detail above, in which Professor Barnes came to give his “revised” opinion, nor that no-one at Pannone had shown the report of Dr Huddy to Professor Barnes.
In my view, this was a case where all available medical evidence relevant to the issue of capacity should have been disclosed to the Court, including the reports of Dr Rosenbloom and Mr Baldwin, both reports of Professor Barnes dated 22 January 2009 and 6 October 2009 and the report of Dr Huddy. It was essential that Professor Barnes be shown the report of Dr Huddy, because Professor Barnes was performing a volte face that was not supported by Dr Huddy’s conclusion. It is then almost certain that the Court, faced with this welter of conflicting medical opinion and aware of Professor Barnes’ volte face and the deeply unsatisfactory scenario that had unfolded, would have refused to determine the application on paper, but would have insisted on an oral hearing at which the issue could have been fully and properly considered. I am unwilling to speculate as to what the outcome might have been if a proper procedure had been followed at that time, but the possibility cannot be ruled out that the Court might at that time have found that the Claimant had capacity. In the light of my own conclusion such a finding, although not unreasonable, would have been incorrect.
The decision is important as to the procedure to be adopted when making an application to the Court of Protection. A person is to be assumed to have capacity unless proven otherwise: it seems perfectly logical, therefore, that where contrary evidence exists it should be the duty of anyone applying for a deputyship order to exercise extreme caution and present all relevant evidence to the Court of Protection in order that a fully informed decision can be taken.
In this particular case in question Parker J ultimately concluded that the Claimant lacked capacity so, on one level, it could be argued that no harm had been done. The evidence was, however, very finely balanced and – by the date of the trial – there was a weight of expert evidence on both sides.
Consider this, however: had Parker J not reached the conclusion that he did then difficult questions would have arisen as to the £40,000 worth of fees which the Court of Protection team had incurred since their instruction.
Court of Protection teams within law firms need to ensure that they present full and frank disclosure to the Court of Protection when applying for a deputyship order otherwise they face concerns of conflict between their own fee earning position and the interests of a claimant when it is perfectly obvious which should be paramount.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.