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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 >> Aderounmu v Colvin  EWHC 2293 (QB) (20 August 2021)
Cite as:  EWHC 2293 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| OLUSEYE ADEROUNMU
( A Protected party acting by his litigation friend JOHN EDUN)
|- and -
|DR DEBORAH COLVIN
Sarah Christie-Brown (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 1st, 2nd ,3rd,, 16th March and 28th May 2021
Crown Copyright ©
MASTER COOK: :
" cant talk clearly. Says at college but extremely inarticulate … very hard to work out what is going on … CVA with speech problems? … arrange further tests as appropriate. Head Scan?"
The relevant law
"(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary …"
"For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision ..."
"(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision."
"What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all "lay client" decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award."
"The question, as we have seen, is always issue specific. There may be different answers to the questions, 'Does this person have litigation capacity?' and 'Does this person have subject-matter capacity?'…it all depends on the circumstances. There is no principle, either of law or of medical science, which necessarily makes it impossible for someone who has litigation capacity at the same time to lack subject-matter capacity. That said, however, it is much more difficult to imagine a case where someone has litigation capacity whilst lacking subject-matter capacity than it is to imagine a case where someone has subject-matter capacity whilst lacking litigation capacity."
i) "medical records in existence which record the condition and behaviour of the Claimant going back over 7 years"
ii) The fact that the Claimant had taken a long holiday in Australia on his own
iii) The fact that he had instructed solicitors to seek an order for contact between him and his son (and as far as the judge was aware, capacity had not been raised by those solicitors)
iv) Evidence from his family including DVDs showing his behaviour on holiday.
v) Expert medical evidence.
"(3) An action to which this section applies shall not be brought after the expiry of the period applicable in accordance with sub-section (4)….
(4) … [T]he period applicable is three years from –
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
Section 14 provides,:
"(1) … [I]n section 11… references to a person's date of knowledge are references to the date in which he first had knowledge of the following facts –
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence… or breach of duty; and
(c) the identity of the defendant; …
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
"39. In a judgment delivered in July 1997 (Spargo v North Essex District Health Authority  PIQR 235) Lord Justice Brooke complained that the law on the application of s.14 was 'grossly overloaded' with authority. 15 years later, in AB v Ministry of Defence  AC 78. Lord Walker remarked that in the intervening period "the overload has increased". The clear authoritative emphasis is therefore to not overburden and overcomplicate the interpretation of s.14 with too ready recourse to myriad examples as to how it has been applied in the particular circumstances of other cases. Rather, section 14 should be capable of ready and sensible application by primary reference to the plain statutory language and sparing use of those cases designed to serve as general guidance."
"the court does not ask whether the what the claimant did or did not do was subjectively reasonable. Rather, as the respondents submitted, when considering whether a claimant had constructive knowledge of the attributability of his condition, the court asks whether a normal adult in the position and with the knowledge of the claimant would have sought expert advice about the cause or attributability of his condition. Put another way, considered objectively, should the claimant reasonably have been expected to seek expert advice?"
"I wonder, therefore, how much difference there is in practice between the two approaches. We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics". (my emphasis)
"33.— Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."
"3) The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan at 477E; Adams v Bracknell Forest Borough Council  UKHL 29,  1 AC 76, at , approving observations in Robinson v St. Helens Metropolitan Borough Council  PIQR P9 at  and ; McGhie v British Telecommunications plc  EWCA Civ 48, (2005) 149 SJLB 114, at . Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.
4) The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayersat .
5) Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council  EWCA Civ 482 at . If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority  Lloyd's Rep Med 146.
6) The prospects of a fair trial are important: Hoare at . The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan at 479A; Robinson at ; Adams at . It is, therefore, particularly relevant whether, and to what extent, the defendant's ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson at ; Adams at ; Hoare at …
12) Proportionality is material to the exercise of the discretion: Robinson at  and ; Adams at  and . In that context, it may be relevant that the claim has only a thin prospect of success (McGhie at ), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson at ; Adams at ); McGhie at ), that the claimant would have a clear case against his or her solicitors (Donovan at 479F), and, in a personal injury case, the extent and degree of damage to the claimant's health, enjoyment of life and employability (Robinson at ; Adams at )."
"73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones."
" ☐ Severe headache never had a headache like it - went to GP - told to go home and rest
☐ Went back next day -saw different GP - said would test blood but no urgency
☐ Went to A&E same day - told GP needed to refer him - no tests and sent home
☐ At home got up to go to toilet and collapsed - lives alone - couldn't get to phone
☐ Found 2/3 days later by his friend
☐ Taken by ambulance to hospital
☐ Had suffered a stroke - can't recall the events after the collapse
☐ Affected mobility of arm and leg
☐ Apparently clot caused the stroke
☐ 4 months in hospital - rehab
☐ After that some therapies - SLT etc.
☐ Reason calling is he can't do anything - is not in a good way
☐ Previously was studying business admin. Now can't work/study
☐ Has to attend hospital every month
☐ Has a carer who comes every day
☐ He has never seen his medical records
☐ Has not spoken to a solicitor about this before
☐ Everything is difficult for him - can't speak/write
☐ Can't leave the house alone - needs support with everything
☐ Is on aspirin for blood thinning
☐ Last year was hit by a car crossing the road - had gone out alone - can't remember what happened.
☐ He has recently been speaking to friends about his situation and somebody suggested he contact a solicitor."
"investigate. Explaining 2 important issues to consider – limitation/capacity and case merits and prospects.
Explaining why capacity is important in his case since 3 year time limit if he has capacity has been and gone. Explaining exception for patients. Explaining we don't think he has the necessary capacity at the moment but this may need formal assessment. Explaining he needs a litigation friend hence John asked to meeting. Explaining the role of a litigation friend to John Edun – John is happy to do this. Explaining will ask def to agree to claimant lacking capacity. They may dispute this in which case may need to be decided by court. Will cross that bridge when we come to it. "
"Running through facts of incident again – filling in a few gaps as follows:
☐ Date of hospital admission with stroke – 24 November 2009
☐ Dr on first visit also told him to take paracetamol
☐ On second GP visit was also experiencing difficulty speaking
☐ When home after A&E visit he slept before getting up to go to toilet, collapsing
☐ His diagnosis – right sided hemiparesis, left sided cerebral hypoplasia
Taking down name and address of new GP:
Jenner Health Centre, 201 Stanstead Road, London, SE23 1HU.
Asking if he had any questions. He is frustrated with the situation he has been left in. He has no life now and he wants things how they were before. Explaining that we really want to help him and we will do everything we can to do that."
"As discussed previously, I am unable to properly assess whether or not your client can communicate and understand complex information as required for capacity to undertake legal proceedings. This would require as assessment and opinion ?rm a quali?ed speech and language therapist.
I can con?rm that at the time of my home visit on 31" May 2017, and on the presence of his friend, Mr Edun, your client was alert and able to understand the majority of my questions and discussions. He was able to communicate decisions and answers, albeit slowly and with dif?culty. He was able to retain simple information for at least a few minutes.
He understood why I was there, and that his claim was against hospital and his GP for having done wrong.
Although not being able to properly con?rm that he does have capacity, I am unable to con?rm that he does not have capacity and the statutory principle is that a person does have capacity unless it is established he lacks capacity."
"Mr Oluseye Aderounmu presents with significant impairment in expressive language and mild impairment in receptive language, in addition to mild-moderate memory impairment.
Despite the presence of these communication and cognitive impairments, he successfully passed the current mental capacity assessment.
As such, it is my opinion that Mr Oluseye Aderounmu will require additional support to be involved with decision making regarding the conduct of his legal proceedings (please see "Recommendations" section below).
It is my opinion that Mr John Edun should remain a signi?cant person of support for Mr Oluseye Aderounmu throughout the process of the legal proceedings, in order to enable his optimum level of ability."
Mr John Edun
"20. A recent example is when Oluseye needed help to sort through some papers and find his immigration documents to provide to his solicitors. I went to his house to help him do this. He struggles if there are lots of papers in front of him and his brain gets mixed up so I help him with stuff like this. He forgets what he has read and has to re-read documents, but by the time he moves on to another document he will have forgotten what he has read. That's why I help him sort through his paperwork or help when he needs to find a document. I also help him sort through his post to make sure that he does not miss anything important.
21. I help Oluseye complete any forms which he struggles to understand. He can hold a pen in his left hand and write, but he is unable to understand questions which go beyond name, date of birth and address for example. If there is anything that needs to be done on a computer, I will help him with this. For example, if he is searching for anything online I will do this for him.
22. Oluseye's bills have all been set up through direct debits so he does not have to worry about paying these himself, but if there are any other bills to pay or items he needs to order I will do this for him. Numbers get jumbled up in his head and so I help him when he does his shopping or pays for any bills. If he needs to go to the bank or to the post office, I will go with him. If he needs to deal with benefits issues or contacting the council about anything, I do this for him. They all know me now as I have contacted them so often and gone with him to his appointments.
23. If there are any phone calls which may be difficult for him to understand, I will make the call for him and explain it to him. If for example, Oluseye has spoken to someone on the phone he would usually call me and either tell me what they spoke about so that I remember it for him or if he has already forgotten then he asks me to call the person back and confirm what they spoke about. There are other times where he has told his solicitors for example that he has understood them, but then calls me straight away to admit that he did not understand. I then call back his solicitors and ask them to repeat it all to me. This is a regular thing for him. I am basically like his diary, calendar and note taker.
24. If Oluseye has any Job Centre or benefits appointments or interviews, he will tell me in advance so that I can remember it for him and so that I can also go along with him. He finds it difficult to concentrate for long periods of time and is very tired by the end of long appointments. I stay with him to help him understand the information or questions being asked and bring him home. When he has long appointments or long tasks to do, Oluseye needs time to recover from it. He will be tired the next day and not have much strength to do anything other than rest.
25. Oluseye also does not use public transport and the routes confuse him. He would get lost without someone with him so I take him to any appointments that he may have and bring him home."
"He has a moderate expressive dysphasia with dif?culty expressing himself and word-?nding, but he can communicate, speaking slowly and using simple sentences, in a fairly effective manner, but clearly has more dif?culty engaging in more complex conversations. From the point of view of his understanding of written and spoken language, this is also impaired, although he does appear to have reasonable understanding of simple sentences and commands but is likely to have a signi?cantly impaired ability to understand more complex and abstract language. If this requires quanti?cation, this could be performed by a neuropsychologist."
i) unable to use the stairs
ii) mobilising outdoors with two elbow crutches and the supervision of one person.
iii) Needing supervision in toileting
iv) Occasional urinary incontinence
v) Pain "all over his body"
vi) Balance problems and dizziness
"There were signi?cant impairments in recall on cognitive testing and Mr Aderounmu also gives a subjective account of dif?culty in concentrating and recalling information and holding this in mind in order to reach decisions in his day to day function. Whilst he is aware of these dif?culties and sensibly seeks advice in decision—making, I was concerned, particularly from the perspective of his reading information, that his ability to weigh in the balance was impacted by his dif?culties in recalling that information and retaining as well as manipulating several pieces of information, in order to reach a decision."
"At my re-examination, Mr Aderounmu was reporting that he was less able to manage his affairs and had deferred much of this to Mr Edun on a day-to-day basis. Mr Edun's witness statement and account at interview at the consultation, con?rmed that he supported Mr Aderounmu in managing ?nances and affairs and that this was made straightforward by having established Direct Debits for bills."
"…on the balance of probabilities, I cannot identify any reason to presume that he did have capacity to litigate at any point from the stroke onwards. I have no reason to believe that neuropsychologically he has deteriorated over the ten-year period since his stroke and that would not be consistent with the natural history of his stroke unless there had been any clear evidence of further neurovascular injury. I would defer to neurological expertise in considering whether there has been any further vascular disease which may be expected to have caused a deterioration in his cognition and subsequently a worsening of his decision making capacity as a result of the cognitive consequences of any cerebrovascular disease subsequent to the index stroke."
Dr Padraig Wright
"Question - Does the person to whom the application relates have an impairment of or disturbance in the functioning of the mind or brain?
Answer - Yes, the Claimant sustained a stroke on 23rd/24th November 2009 and this caused receptive and expressive dysphasia and impairment of memory which has persisted to date
Question - If the decision (litigation) is not urgent, can it be delayed because the person is likely to regain or develop the capacity to make a decision for themselves?
Answer - It is now over 9 years since the Claimant had his stroke and further improvement in his receptive and expressive dysphasia and impairment of memory is highly unlikely
Question - Can the person understand the information relevant to the decision (litigation)?
Answer - Yes, the Claimant can understand relatively complex information that is relevant to the decision (litigation). Furthermore he appreciates that his receptive and expressive dysphasia and his impairment of memory may affect his ability to litigate and will compensate for this by taking the time he requires and by involving his friend, Mr. John Edun, in the process. The Claimant's understanding of the information relevant to the decision (litigation) will be enhanced by additional supports during the process including for example presenting information in written as well as verbal formats, presenting information more slowly than usual and possibly involvement of a Yoruba interpreter.
Question — Can the person retain the information long enough to make a decision (litigation)?
Answer -Yes the Claimant has impairment of memory but this is relatively mild and he can retain information long enough to use it to make decisions during litigation.
Question — Can the person use or weigh the information as part of the process of making the decision (litigation)?
Answer - Yes, the Claimant can use or weigh information as part of the process of making the decision (litigation).
Question - can they communicate their decision by any means available to them?
Answer - Yes, the Claimant has receptive and expressive dysphasia but these are relatively mild and easily overcome by, for example, rephrasing questions, speaking more slowly and/or more clearly, re- questioning him, asking him to clarify his answer or paraphrasing his answer back to him and having him confirm the understanding or further explain his answer."
The joint psychiatric report
i) that there are no objective tests for capacity although standardised interviews have been proposed,
ii) that they were not reliant on the results of the neuropsychologists' testing in order to reach an opinion on capacity. They noted the Mental Capacity Act Code of Practice 4.50 states 'For certain kinds of complex decisions (for example, making a will), there are specific legal tests (see paragraph 4.32 above) in addition to the two-stage test for capacity. In some cases, medical or psychometric tests may also be helpful tools (for example, for assessing cognitive skills) in assessing a person's capacity to make particular decisions, but the relevant legal test of capacity must still be fulfilled',
iii) that an assessment of capacity is time-sensitive,
iv) that an assessment of capacity is decision-specific.
v) that the kinds of questions that would be asked by a doctor in assessing a patient's capacity to consent to medical treatment include those that are outlined in the British Medical Association Consent and Refusal Toolkit 2019
vi) that these questions are not the same as the questions that should be asked in determining whether a patient has capacity to litigate. They agreed that the questions that are asked in capacity to litigate include:
a) - awareness of the existence of a potential claim,
b) - knowledge of the potential Defendant,
c) - ability to seek and act upon legal advice,
d) - ability to instruct solicitors,
e) - ability to make decisions given appropriate advice during proceedings, (issue proceedings approve disclosures, approve an offer to settle, modify the claim, withdraw the claim if appropriate, proceed to Court),
f) - understanding of the risks of rejecting an offer to settle,
g) - understanding of how payment of a claim may be structured.
vii) That the following issues might be relevant to the assessment of capacity to litigate, depending on the evidence available and its influence on the Claimant's decision making capacity:
a) evidence of those close to the patient.
b) other assessments of capacity (whether in relation to litigation or otherwise).
c) evidence from professionals who may have assisted, represented or treated the patient.
d) medical records.
e) cultural issues.
f) religious issues.
viii) that the Claimant has a permanent impairment of the brain as a result of his stroke?
i) His memory.
ii) His ability to understand information relevant to a decision within the context of legal proceedings(where an explanation is given to him in a way that is appropriate.
iii) His ability to retain information.
iv) His ability to use or weigh that information as part of the process of making the decision.
v) His ability to communicate his decision (by any means).
vi) His numerical ability.
"Mr Aderounmu confirmed he has noted various changes to his cognitive abilities. He explained his memory is "bad". He told me that "everything is blank, I can't remember anything, nothing, not even my date of birth"... "my memory was wiped, things I could do before, I don't know how to do it" but thought it had improved as a result of the blood transfusions he has had. He stated his speed of thinking feels "slowed down" and he is always "losing" track of what is being said. He explained he does not feel he can make decisions now and "don't know what is good for me" he described that he no longer has "any confidence" in his decision making."
"Whilst he has impairments in communicating his thoughts, it is possible with a skilled listener to support his communication and assist him to express his ideas and decision. I think he is therefore able to communicate by any means. Mr Aderounmu, has impaired comprehension and difficulties with understanding all the information relevant to the decision as a result of his memory difficulties. When this is all laid out, time pressures are off him, his fatigue is minimized and communication uses a total communication approach, I think on balance his is able to understand the information relevant to the decision. However, overall I conclude that he lacks the mental capacity to litigate in this matter because of the problems he has with both holding information in mind and his ability to use and weigh information. These difficulties are the direct result of the injury to his brain. I do not consider some 10 years post injury that they will resolve and therefore his difficulties should be considered permanent."
"It is difficult to give an opinion retrospectively on mental capacity, as decision making in the spirit of the Mental Capacity Act (2005) is time specific and the potential for fluctuating capacity is recognized. However, as I have stated it is unlikely that his abilities could have declined. By the time he was assessed by Dr Dilley in 2018 he was considered to lack mental capacity to litigate and this was still my view in 2020. Therefore, on the balance of probabilities it seems unlikely that he would have had mental capacity to litigate and then lost it. In my opinion, it is equally unlikely that his capacity for this specific decision has fluctuated as he does not have a clinical reason for this fluctuation. It seems to me that it is more feasible to understand the differences in perceptions of mental capacity by the differences in assessment criteria and thresholds, therefore I suspect that Mr Aderounmu would have been assessed as lacking the mental capacity to litigate had he been assessed by myself at an earlier time point."
"The most important aspect, perhaps, was the way he engaged with the various medical professionals who looked after him post—stroke and dealing with his sickle cell disease which had probably been lifelong, and we know that he had had some sickle cell illness prior to coming to England. He would be seeing these people in their hospital consulting rooms for advice and when they had ?nished talking to him about his haemoglobin levels, or other speciality, he would lead the conversation to asking them to help him with a letter supporting him to have leave to remain in the UK and a lengthened visa. He did this with different doctors, sometimes the same doctors repeatedly. He was able to lead the conversation to this particular aspect, and to believe in his problems enough to support him and do this extra work, which is not part of their duties working in the NHS.
This seems to me not only an indication of him understanding what he needed to do to ful?l his ambition of staying in England and getting a Visa or getting UK nationality, a passport. He knew what he needed to do, and he was persuasive and capable of doing it. As relationships with these doctors went on he gradually exaggerated the importance of his student studies, which may have made people feel more sorry for him in that they thought he was losing something really valuable and important. It gave an impression of him suffering a greater intellectual loss or loss of ability to speak English than we have any evidence of. I think also that he was able to make people feel that he was so disabled and they felt sorry for him, showed that he did indeed have capacity, not only to see what he needed to do but then to persuade these doctors to get them to write the letters. This was all happening over the nine years since the stroke and up till the present."
"(i) At interview in presentation and the limited testing he was prepared to engage in I would assess him as within the low average range for intelligence. He has the ability to understand the facts he needs for this, so showing that aspect of capacity. This means that as regards ability to understand issues of a case he has capacity.
(ii) His approaches to doctors to write letters of support for him were persistent and consistent in content and also he managed to achieve this in many cases. He has a well—developed capacity to argue in his own interest and persuade others to help him. He can attend to the details of a case and persist, which is an aspect of capacity to achieve ends.
(iii) He shows evidence of being able to learn new material since the stroke since if he did not know about sickle cell disorder in detail, post stroke, he has learned about this and retained that new information. He is able to learn and his memory is good enough to retain new information and by this he shows he has capacity.
(iv) He is adept at and can concentrate on arranging matters in this case so that they are to the bene?t of achieving his aims. He can do this without the help of others and has had considerable success.
(v) I do not have any reason to think he does not have capacity"
Joint report neuropsychological report
"He has shown great capacity to continue to reside in the UK and to use the NHS. He has remembered what he wants, understands what favours his case, and can retain and act on information regarding his immigration status. His numerical ability seems reasonable and consistent with his Nigerian exam credit and his likely premorbid intellectual level. He gives a strikingly coherent clear account in one of his psychology sessions with Tina Greenhill as to 'what he wants' but at my assessment he sometimes simply would not attempt, or stopped doing the tasks. He shows the capacity not to cooperate if he thinks it would reveal that he has normal numerical and other abilities, which would weaken his legal case. I have my doubts about his physical difficulties, because although he arrived at my interview using a crutch, when he left he simply carried it, walking normally through the office, not seeming to rely on it at all"
Dr Soeterik's position was that she stood by her formal assessment in her February 2020 report however she went on to say;
"I concluded that Mr Aderounmu had difficulties with both holding information in mind for the purposes of decision making AND his ability to use and weigh information specific to this decision. Despite his communication impairments,I considered he was able with a skilled communication partner using a total communication approach, to maximise his abilities to understand the information relevant to the decision and to communicate by any means. The causative nexus of these difficulties in my opinion was his neurological injury he sustained in 2009 and given the length of time post injury, I did not think these would resolve or more time would assist him in enhancing his mental capacity for this specific decision. In addition to the assessment I formally conducted, I refer to the standardised neuropsychometric assessment in this report which shows difficulties with memory and executive skills that would be relevant in decision making. I also refer to the further behavioural based information detailed in the Witness Statement of Suzanne Trask and Mr Edun. Ms Trask an experienced solicitor, raised concerns about his mental capacity to litigate on the basis of their interactions. Mr Edun confirms Mr Aderounmu will say he has understood something someone has said to him, but later in private admits he did not understand the details and requests Mr Edun to help him understand this information. He notes how problematic Mr Aderounmu finds paperwork and completing forms. In my opinion in the round, this illustrates the polite deference Mr Aderounmu makes to people in positions of authority and his desire to maintain his dignity as an adult and avoid feeling humiliated by sharing he is unable to follow discussions and understand critical details about issues in his own life. Nonetheless, it illustrates that he has difficulties with decision making in the terms of the mental capacity act as a result of holding information in mind and using and weighing it."
Discussion and conclusions
i) On 26.1.11, the Claimant applied for leave to remain in the UK on the basis of his human rights. This application was refused with a right of appeal.
ii) On 24.4.11 The Claimant appealed against the decision refusing his application of 26.1.11
iii) On 1.6.11 his appeal was heard at the first tier and allowed
iv) On 25.10.12 the decision to refuse the Claimant's application of 26.1.11 was reconsidered. The application was refused with a right of appeal.
v) On 12.11.12 the Claimant lodged an appeal against the decision to refuse the reconsideration of 25.10.12.
vi) On 1.10.13 the Claimant's appeal was dismissed at the first tier.
vii) On 12.11.13 his application to the upper tier was refused
viii) On 20.11.13 his appeal rights were exhausted
ix) On 2.3.15 the Claimant was issued with a 1S151A.
x) On 20.4.15 he was issued with a RED0001.
xi) On 3rd August 2015, the Claimant's application for leave to remain was refused.
i) the diagnosis of stroke in a young man and the investigations, treatment and rehabilitation he subsequently required,
ii) subsequent investigations carrying significant risk for an anterior communicating artery aneurysm,
iii) the diagnosis of complex sickle cell disease (HbS+C) and the prolonged and continuing treatment he subsequently required,
iv) a complex immigration issue during which he sought help from statutory and voluntary organisations and from his health professionals,
v) difficulties with housing and accommodation for which he sought help from statutory and voluntary organisations and from his health professionals,
vi) difficulties with debts at his university and at Homerton Hospital for which he sought help from statutory and voluntary organisations and from his health professionals,
vii) the complex issue of marrying and having children with a woman who has sickle cell trait,
viii) the possibility of contracting HIV and the decision to have a HIV test.
"asking for co-codamol use: them as sickle cell. not using regularly. also going to Nigeria for over 3 weeks asking for repeats early just in case he runs short should have another month left but will issue early as will be away when needs"
To my mind this is a clear example of the Claimant planning for the future (his trip to Nigeria), identifying a problem (the fact he will run short of medication) and taking steps to remedy that problem (obtaining more medication).
i) Kings College Hospital note 10 May 2011 - Mr. Aderounmu was looking after himself he attended the clinic independently, gave a good account of himself and was able to dress himself, feed himself etc. This contrasted dramatically with the current level of independence reported to Dr Wright.
ii) GP note 24 August 2011- He has an interview for college coming up He uses the bus as his means of transport. This contrasts dramatically with the level of independence and support reported to Dr Wright.
iii) OT discharge report 8 December 2011 - has started working on a Saturday in a charity shop in Catford on a voluntary basis and reports to be enjoying the work … attended an interview at Sydenham Gardening Group and is looking forward to attending weekly sessions. He was able to attend the meeting on his own using public transport … able to wash and dress himself independently and prepare a basic meal … has achieved his goals of increasing his leisure activities, attending voluntary work and being able to prepare a basic meal. This also contrasts dramatically with the level of independence and support reported to Dr Wright.
Date of Knowledge
"S: He was very angry with his GP from Hackney. He reports through investigations by the Kings Haematology department he has learned he requires treatment (blood transfusions). He reports prior to his stroke he had been unable to speak for a short amount of time with no physical symptoms. Reports he went to see his GP who sent him home saying…there was nothing wrong with him. States "He has destroyed my life".
O: Discussion around anger/using anger to give feedback to GP/PCT … reluctant to do so – understands his Christian principles as not making a complaint. Discussed how feedback may prevent the same thing happening to someone else – he asked how he could do this, OT agreed to provide contact details for Hackney pct PALS/complaints team with discharge report."
"At the end of the session he also spoke for more than 10 minutes about how he is so angry with his old GP for not sending him to hospital when he was unable to speak (before his stroke), as this probably indicated he was having a TIA. He was very emotional about this and stated "he has torn my life down". Client has previously discussed this issue with Ute OT and is considering making a complaint about it. Though he also expressed being reluctant to complain."
"Many thanks for asking me to see this very pleasant Nigerian man. now 30 years old. He was on a student visa when he had a sudden onset of speech loss. it wasn't clear from his story how long it took hin to get to the complete hemiplegia. but presumably that happened all very quickly and he was admitted to Homerton Hospital. The story at this time was complicated by the fact that his GP and the A&E department told him there was nothing wrong with him."
"Discussed stepping out self management programme.
S: Reports he has read the stories and found it useful to see how many different symptoms stroke can cause and how people coped. Reports he is going to see the stroke association - had a map with their address marked. Reports he has been to the library once to ?nd the address on the internet.
Reports he is due to move to a new accommodation next week. Also wants to return to college - consistent with last SALT entry
However, did not wish to set speci?c goals in this session - feels he has to cope with a lot of change (move as well as medical treatment)."
Section 33 LA