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Lindsay v Wood, High Court, 16 November 2006

20 December 2006
The issues

Capacity – Masterman-Lister test. Whether Claimant was a patient within the meaning of the Mental Health Act 1983.

The facts

The Claimant had suffered serious brain injuries in a road traffic accident. Liability had been admitted. The Claimant suffered from a mental disorder caused by the accident. There was an issue as to his capacity to conduct the litigation and manage any award of damages.

The decision

Amongst the issues that psychiatrists would consider when taking into account capacity was vulnerability to exploitation. However, this did not of itself lead to the conclusion that there was lack of capacity. The issue was the ability of the Claimant to make a rational decision. In a case of this sort the Claimant might have to weigh up the advantages and the risks of accepting an offer of periodical payment as against an offer of a lump sum plus periodical payments. The evidence suggested that the Claimant would be able to manage such a complex decision or unable to deal with the advice he was likely to receive or give rational instructions based on that advice. The Claimant therefore came within the Masterman- Lister test and was a patient for the purposes of that test. Generally, where the legal team of a Claimant were unable to present a positive case as to whether the Claimant was a patient they should give consideration to seeking an Order of the Court directing the official solicitor to consider the evidence, appoint his own medical expert, appear and make such submissions as were considered appropriate.

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