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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Tinsley v Sarkar  EWHC 192 (QB) (18 February 2005)
Cite as:  EWHC 192 (QB)
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QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Crown Square, Manchester M3 3FL
B e f o r e :
| DAMIEN TINSLEY
(by his Receiver and Litigation Friend
|- and -
| JAIDIP SARKAR
(instructed by Betesh Fox & Co, Manchester) for the Claimant
Christopher Purchas QC and Simon P. Browne
(instructed by Kennedys, London) for the Defendant
Hearing dates: 1-4, 7-10 February 2005
Crown Copyright ©
Mr Justice Leveson :
Damian Tinsley: History
"Prior to the index accident, Mr Tinsley showed material psychological problems. His mother had a long history of alcohol misuse and psychological problems. He was apparently raised in the belief that his step-father was his own father. His stepfather was aggressive and may have made inappropriate sexual advances. He was in care between the ages of 12 and 14 years during which he was exposed to inappropriate behaviour from his peers associated with the onset of heavy regular drinking and misuse of drugs. He truanted towards the end of his time at school, after which his misuse of alcohol and drugs increased as did his offending behaviour. From the age of 25 years, he acquired convictions for public disorder offences, fraud and possession of an offensive weapon. He has not received a custodial sentence but has spent various periods on remand."
"His background, adverse family experiences, time in care, delinquent and substance misuse behaviour in adolescence comprise very significant vulnerability factors for later problems."
Mr Tinsley's Present Condition and Prognosis
"It is most improbable that there will be any further improvement regarding Mr Tinsley's organic personality disorder or dys-executive symptoms. This does not mean that he is incapable of showing improvements in behaviour when in a highly supported care setting with staff of appropriate skills. However, any such behavioural gains are likely to be subject to occasional set-backs consequent on relapse to heavy drinking."
"emotional lack of control; impulsivity; aggression, primarily but not exclusively verbal; inflexible, rigid thinking, variable motivation; lack of persistence; lack of insight/awareness; lack of compliance to rules; egocentric and uncaring of others".
They go on:
"As well as this, his mood can be low, he can be a fussy eater, he is liable to abuse alcohol and lighter fuel, and other drugs if he can get them and he has a difficult aggressive relationship with his mother. He also has post traumatic epilepsy not fully controlled by medication at present."
It is appropriate at this stage to record that although the parties initially had divergent views upon the appropriate measure of damages for pain suffering and loss of amenity, by the end of the hearing, that head of claim had been agreed at £140,000.
Expectation of Life
The Claim for Care
Care in the Past
"In my judgment, there is no scientific basis for a strictly mathematical answer to this question. Nor is the exercise upon which the court is engaged amenable to such an answer. The assessment has to be a broad one, and what in the end is required is a single broad assessment to achieve a fair result in the particular case. I appreciate that a conventional discount would be convenient and might remove one variable from practical settlement negotiations. But I do not consider that one possible element of a single broad assessment should be required to be a conventional figure. On the contrary, it seems to me that first instance judges should have a latitude to achieve a fair result."
The Future: Mr Tinsley's view and its significance
The Divergent Views on Future Care
Residential or Own Accommodation
"In my opinion the risk of the Claimant behaving in an antisocial way is almost certain especially if [he] is not completely abstinent [from alcohol].
In my opinion, 24 hour supervision from appropriately trained support workers would be acceptable risk management so long as the programme included abstinence. In my opinion, no support worker could be able to manage the risks if the Claimant was inebriated."
In the joint report that he prepared with Dr Huddy, the opinion was expressed in this way:
"Considering his organic personality disorder and lack of insight as well as his stated preference, providing a rehabilitation programme, support and supervision in his own home is the most appropriate strategy to meet his complex needs. In our opinion all other programmes to date have failed in that the Claimant has had significant difficulty living with others and has stated that he wishes to live alone.
In our opinion, maintaining him in a residential group environment against his wishes is unlikely to reduce the risk even if the support is provided by trained mental health nurses. It is furthermore likely that his oppositional defiant attitude will increase the risk resulting in the need for increasingly secure accommodation."
"Dr Scheepers acknowledges that within such a programme there will on the balance of probability be periods when the Claimant relapses both in relation to substance abuse or deterioration in his mental health but in his opinion this would occur equally in any environment outside a secure facility."
"If the Court agrees with the Defendants that hostel accommodation is most appropriate for his future care and is in his best interest, then in my opinion the Claimant will not accept this voluntarily and compulsion will be required using the [MHA]. In my opinion, this is an inappropriate use of the [MHA] and an unacceptable restriction of his freedom."
"Dr Powell feels that the option of living in his own accommodation is, for example, a risk to support workers, difficult to sustain in terms of staffing and cost inefficient whereas Dr Huddy feels that appropriate residential units simply do not exist so one has no option but to go up the route of his own accommodation, with the appropriate number of 1:1 support workers all trained appropriately."
"I conclude that if Mr Tinsley is placed in a supportive environment such as a hospital or hostel, that this should be regarded as a long-term and permanent placement. Such a placement is more likely than not to meet his needs, and to succeed. If placed in his own house with support, then this is likely to fail."
"If, as [Mr Tinsley] wished, he had been placed in his own home with one or two carers, then on the evidence of his recent behaviour [in the first part of 2004], that placement would have broken down. Two carers would have had great difficulty in preventing more frequent episodes of intoxication. They would have had difficulty in preventing harm to themselves and to the general public. Relationships with a small group of carers in a confined setting are likely to come under significant strain. In such a placement, he would have an impoverished quality of life without social contacts with other residents and with access to a more restricted range of activities."
"I can … see little advantage in a move to his own accommodation. Indeed, there are distinct disadvantages in that relationships with the carers, who will be his sole company in the home, are likely to come under significant strain, especially when Mr Tinsley realises fully that after a probationary period he is not simply going to be given the keys and told that he has done his time."
"I note the continuing problems with alcohol consumption from 1998 through to the most recent assessments. I note the continuing lack of insight into the effects of alcohol and his refusal to try to stop drinking completely. It is therefore highly unlikely that he will be abstinent from alcohol unless he was sectioned and in a locked environment. Given that he is not in a locked environment and that there are no plans for him to be so, the goal of abstinence is unrealistic. His future care regime will have to be planned on the assumption that he will sometimes access alcohol or drugs and at these times will be aggressive and potentially dangerous.
This reinforces my view that he should not be in his own house but in an appropriately registered residential unit in the community with appropriate levels of top support worker time so that there is a range of viable activities … other than the pub."
The Extent of Required Support
"There will be a significant amount of direct 1:1 support to help him engage in activities especially those off site, such as college courses, [Narcotics Anonymous] or [Alcoholics Anonymous], the pub, visits to family/friends, though we would both prefer a totally abstinent regime.
At times there will need to be 2:1 support, in order to contain his aggression and maintain his own safety and the safety of others."
Base Line Fee, Redford Court £ 1275
Vocational and other Activities 50
Additional Support: 76 hrs/wk @ £11.40 per hour 866
Administration Fee (2.5% of £2,191) 55
TOTAL £ 2,246
The Trust: Public Provision for Mr Tinsley and the Question of Loss
The Statutory Framework
"(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of [a hospital direction made under section 45A above or] a transfer direction made under section 47 or 48 above, and then cease to be detained and [(whether or not immediately after so ceasing)] leave hospital.
(2) It shall be the duty of the [Primary Care Trust or] [Health Authority] and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the [Primary Care Trust or] [Health Authority] and the local social services authority are satisfied that the person concerned is no longer in need of such services[; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject.] "
" (1) ….[W]here it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such service, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
"In my judgment section 117 imposes on health authorities a duty to provide after-care facilities for the benefit of patients who are discharged from mental hospitals. The nature and extent of those facilities, must, to a degree, fall within the discretion of the health authority, which must have regard to other demands on its budget. In relation to the duty to satisfy conditions imposed by a tribunal, I would endorse the concession made by the respondent authority as to the extent of its duty."
Thus, resources are not irrelevant.
"Unfortunately there is neither a bottomless pit of funds nor an adequate supply of suitable accommodation and support to cope with these difficult cases. Stretched local authorities and health care providers have to make do as best they can with the facilities and resources that are available."
"If the argument of the authorities is accepted that there is a power to charge these patients, such a view of the law would not be testimony to our society attaching a high value to the need to care after the exceptionally vulnerable."
The Operation of s 117 in Manchester
"Some judges also have an instinctive feeling that if no award for care is made at all, on the basis that it will be provided free by local authorities, the defendant and his insurers will have received an undeserved windfall."
Loss of Earnings
Miscellaneous Past Loss
Future Medical Costs
Mental Health Legal Costs
Receivership and the Court of Protection
General Damages £ 140,000
Care £ 17,075
Case Management £ 23,361
Loss of Earnings £ 12,500
Receivership £ 2,675
Miscellaneous £ 750 £ 56,361
Care £ 2,890,257
Case Management £ 73,623
Loss of Earnings £ 22,500
Medical Costs £ 62,782
Transport £ 45,840
Occupational Therapy £ 93,514
Receivership £ 89,795 £ 3,278,311
TOTAL £ 3,474,672