Tinsley v Sarkar

On 26^th May 1998, at the age of 28 years, the Claimant, Damien Tinsley, was severely injured in a road traffic accident when knocked from his bicycle at a junction. Proceedings were commenced on 24^th April 2001 and issues in respect of liability were subsequently compromised on the basis that Mr Tinsley should receive 90% of the damages to which he would otherwise have been entitled on a full liability basis. As to quantum, the major component of the claim (as is not unusual in cases of this nature) is future care costs; in the final Schedule of Loss submitted before trial, these were put at a figure in excess of £5.5 million. This claim is effectively disputed in its entirety by the Defendant on the basis that a combination of local social and health services have an obligation to make appropriate provision for Mr Tinsley pursuant to the provisions of section 117 of the Mental Health Act 1983 (“the 1983 Act”); the best case advanced on his behalf in the Counter Schedule then assessed this aspect of the claim at some £97,000. At the commencement of the hearing, every other head of claim was also in issue; as the case progressed, a number were compromised.

I take the pre-accident function of Damien Tinsley from the agreed conclusions contained in a document which followed the joint meeting of psychiatric experts, Dr Bruce Scheepers who reported on his behalf and Dr Andrew Johns who reported for the Defendant. It is put in these terms:

“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.”

The agreement goes on to record Mr Tinsley’s resentment of his mother (it being of relevance that he now has no supportive family of any sort) and the fact that, contrary to his recollection, the medical records show that he was drinking heavily until at least April 1997 when he met diagnostic criteria for severe alcohol dependence, and also multiple drug misuse (having taken cannabis, amphetamines and methadone). It also appears that he had suffered alcohol related seizures. Notwithstanding these difficulties, his pre-accident intelligence has been assessed as having been in the normal range.

Things then started to looked up. Over the following year, Mr Tinsley abstained from alcohol, attended Alcoholics Anonymous regularly and appears to have shown a far more stable, independent and focussed lifestyle. He had no further criminal conviction, studied successfully (although he might have had difficulty time keeping) and gained a place at Art College which he was due to take up in the September after the accident. The agreement, however, makes the realistic assessment:

“His background, adverse family experiences, time in care, delinquent and substance misuse behaviour in adolescence comprise very significant vulnerability factors for later problems.”

I turn to the accident. Again, relying in the main but not entirely on the agreed analysis, it is sufficient to record that Mr Tinsley required urgent surgical decompression of an acute subdural haematoma. After rehabilitation, in June 1998, it was mooted that he would be able to continue with his Art course and, in early November, he was discharged from hospital back to his home although, within a day or so, it was clear that this approach was far too optimistic. As a result, he was admitted to a unit for the disabled where he started to show behavioural problems; he absconded, drank alcohol and demonstrated sexual disinhibition. It was clear that he was exhibiting symptoms of frontal lobe dysfunction and organic personality disorder. He was also becoming depressed.

In January 1999, Mr Tinsley was admitted to a psychiatric ward but, when he continued to deteriorate, he was compulsorily detained in a secure unit for observation under section 2 of the 1983 Act, being transferred the following month to the Transitional Rehabilitation Unit based in St Helens (“the TRU”) where he was diagnosed as suffering post traumatic epilepsy with continued behavioural problems. He demonstrated poor engagement in rehabilitation. Unfortunately, Mr Tinsley’s condition deteriorated and after further cranial surgery, in February 2000, he was transferred to the Kemsley Unit at St Andrews Hospital having again been compulsorily detained on this occasion under section 3 of the 1983 Act for treatment. He remained in that secure unit until July 2002 when he was transferred, still subject to compulsory detention for treatment, to Brook House Mental Health Nursing Home. While there, he had limited periods of escorted leave, was largely compliant but did not spend time with other residents. He began again to access alcohol and there was a deterioration in his behaviour. Again, he did not engage in meaningful rehabilitation.

On 17^th October 2003, Mr Tinsley secured from a Mental Health Review Tribunal a deferred discharge which took effect on 1^st January 2004. On that date he was admitted informally to Harnham House, a mental health nursing home in Manchester; this apparently followed a threat of judicial review directed to Manchester Health and Social Care Trust (“the Trust”) which was in relation to section 117 of the 1983 Act. He has since remained at Harnham House where he has continued to present challenging behaviour. In the first four months, he returned to the home drunk and abusive on some seven occasions (leading, on one occasion, to the police being called); he has smoked cannabis and sniffed butane gas. An assessment in February 2004 considered that the risk of physical and verbal aggression to others was medium to high depending on alcohol consumed, the risk of inappropriate or disinhibited sexual behaviour was moderate and (because of the misuse of butane) the risk of fire was high. It was thought that he was at medium risk of being exploited by others. In June 2004, it was noted that he was continuing to abuse alcohol and butane and was not complying with any rehabilitation.

That is not to say that over the year that Mr Tinsley has been at Harnham House, he has not had a measure of good cause to feel frustrated; he has had many disappointments. Thus, the prospect of a placement at college to study art (which he had been due to start at the time of the accident) did not materialise in circumstances about which he was entitled to feel aggrieved. Other promises of visits or treats did not materialise because of lack of funds. In addition, he had very real difficulties with his mother.

According to Warren Irving, the General Manager of Harnham House and Caroline Ceessay, formerly his key worker and now Assistant General Manager, Mr Tinsley has improved in recent weeks and is engaging with staff. Mr Irving thought that the catalyst was training which his staff had received in relation to managing the problems which presented. Further, after that improvement had commenced, and in order to test one part of the regime proposed on his behalf, Mr Tinsley has again been visiting the TRU: he has done so in the company of carers for two days a week since December 2004. Mr Tinsley himself told me that he looked forward to these days and on these occasions was up at 8.00 am ready to go out; he explained that when he was not due to go out, he would stay in bed until 1.00-2.00 pm to make the day as short as possible. Ms Ceesay confirmed that when he had a purpose to his day, he could get up, and did so on many occasions without prompting.

I was also assisted by Dr Howard Jackson, the Clinical Director of the TRU and himself a Consultant Neuropsychologist, who gave evidence only as a witness of fact. He repeated the background of his admission in 1999 which led to compulsory detention and explained that consideration had been given to him returning to the TRU in 2003 when still subject to compulsory detention. It was in October/November 2004 that the possibility now being proposed by Mr Tinsley’s advisers namely use of the TRU facilities while living in his own property was mooted. He was cautious indicating that Mr Tinsley would, at least initially, require two to one assistance at all waking times and waking night support. It was his offer of a trial consisting of two days’ attendance at TRU for sheltered vocational and therapy activities that was taken up in December 2004.

Dr Jackson reported that Mr Tinsley had settled well into the therapeutic regime although there have already been occasions when he has been sexually disinhibited, touching females or requesting that he be touched revealing social disinhibition and poor judgment and putting himself and possibly others at risk. He has been taken out in public on a couple of occasions when he has behaved; although asking for an alcoholic drink, he did not persist when refused. He was keen to be able to help others which Dr Jackson considered would increase his self esteem and give purpose to his life. Needless to say, these trips were very controlled; they did not involve an overnight stay.

Good evidence of the limited extent of his true progress is apparent from very recent notes of his attendance at the TRU. On 12^th January, he quickly said that he was not interested in any of the activities on offer; later that day he was complaining that he was not being allowed out at night. He subsequently asked a female cleaner if he could “touch her bum” and within an hour asked a female coach for a kiss. The following day he said he had no desire to attend arts and craft (in which he had previously been interested) observing that it was a waste of time. Later that day, he asked a female coach if he could kiss her hand and subsequently asked a member of staff if he could marry her.

It is only fair that I note the clinical meeting concerning Mr Tinsley that also took place on 13^th January (probably following the incidents set out above) at which he was present. Dr Jackson warned that he needed to be able to tell the courts that Mr Tinsley was safe in the community and therefore his social behaviour was vital. He went on to observe that his behaviour became worse when he had alcohol when he put himself and other people in danger. Notwithstanding the expressed concern about alcohol, Mr Tinsley asked if he could celebrate after his case had been to court; to the suggestion of a slap up meal, he said that he wanted a few pints and a bottle of wine with his meal. The adverse effect of alcohol on his personality was then repeated.

I do not place reliance on any one of these incidents in itself but, taken together, they do provide some colour to the clinical analysis of what is likely to be the continuing and challenging condition with which those responsible for supporting Mr Tinsley will have to deal. It is to that analysis that I now turn.

Following the joint discussion between experts in June 2004, Dr Scheepers and Dr Johns painted the picture in clinical terms. They agreed that Mr Tinsley continued to present with significant difficulties with a range of dysfunctional behaviours, mood states and cognitive problems. As a consequence of severe damage to the frontal and temporal lobes of the brain, he met the diagnostic criteria for an organic personality disorder with a consistently reduced ability to persevere with goal directed activities, emotional lability, inappropriate social behaviour and a low threshold for aggression. He showed a marked lack of insight, impaired concentration, reduced intelligence (full scale IQ of 74 compared with premorbid IQ assessed at 95) and impulsivity.

He also met the diagnostic criteria for alcohol dependence syndrome, albeit that at that time he was then abstinent but in a protected environment. He had a strong desire to obtain alcohol but had difficulty in controlling consumption despite his awareness of the harmful consequences. This was greatly aggravated by his organic brain damage which reduced his threshold for intoxication and aggression. They expressed the view that he was “highly likely to relapse to drinking if unsupervised”. He also had a mild depressive disorder and post traumatic epilepsy.

As to the risk, the doctors then concluded that there was a moderate to high risk of violence when Mr Tinsley had been drinking or taking drugs increased because of his limited insight into the need not to get intoxicated. They took the view that the risk of violence when he was sober was low; provided he continued taking his medication, that risk due to paranoid symptoms was also low. As to firesetting or of starting a fire accidentally, the risk was similarly low increasing to moderate in drink. They expressed the 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.”

In addition to making it clear that Mr Tinsley was incapable of managing and administering his property and affairs so that his access to money had to be supervised, the doctors also agreed that he required a high level of care and 24 hour supervision and that in any setting, there would be a need for continued monitoring of his mental state and behaviour. They went on to observe that difficult behaviour in the context of intoxication and relapse to a psychotic state should trigger an assessment of the need for compulsory detention under the 1983 Act to ensure his safety and the protection of others. They anticipated that he would require at least inpatient psychiatric care (if not compulsory detention); their best estimate was an average of three months every three years.

Still setting the clinical scene, it is also worthwhile recording the recent agreement reached by Dr Alice Huddy (Consultant Neuropsychologist advising the Claimant) and Dr Graham Powell (Consultant Clinical Neuropsychologist advising the Defendant) which, as to Mr Tinsley’s condition and needs, appears to be complete (although there is a real issue as to the appropriate and reasonable approach to the fulfilment of those needs). They give a list of his dys-executive problems as including:

“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.

A discreet issue arose concerning Mr Tinsley’s expectation of life and thus the appropriate multiplier to use in respect of any continuing loss; the risks identified as contributing to a reduction in expectation of life were his smoking, his addiction (both to alcohol and drugs), the prospect of self harm, and the consequences of his epilepsy and the additive effects of brain injury. As to this aspect of the case, the evidence was provided by Dr Scheepers on behalf of Mr Tinsley and Dr Oliver Foster, a Consultant Neurologist, on behalf of the Defendant. I will deal first with the individual risks and then assess the position cumulatively.

In relation to smoking, only Dr Foster gave evidence (Dr Scheepers accepting that it was outside his expertise). Mr Tinsley has smoked from the age of 19; in 2004, he was smoking 20-40 cigarettes a day and had rejected smoking cessation advice. Dr Foster concluded that he had an established pattern of addiction to smoking. It was most unlikely that he would ever give up; rather, he would continue at the present level for life. I entirely agree with that assessment; even when he gave up drinking and misuse of drugs, there is no suggestion that Mr Tinsley either then or ever since has intended to give up cigarettes.

Although Dr Foster initially suggested that smoking caused a reduction of expectation of life of 5-7 years, a recent epidemiological study by Professor Sir Richard Doll (Doll R et al. BMJ 2004, June 26, vol 328) indicated a 10 year reduction in life expectancy in those circumstances (that is for someone smoking 20 cigarettes a day; it is higher for greater consumption). Dr Foster took the figure of 10 years. Although he conceded in cross examination that this reduction in life expectancy would diminish and vanish following 30-40 years of abstinence from smoking, I do not accept that Mr Tinsley would ever fall within such a group.

The next factors which could affect life expectancy are Mr Tinsley’s addiction to drink and drugs and risk of self harm. Dr Johns refers to Standardised Mortality Ratios drawn from Harris E.C. and Barraclough B, British Journal of Psychiatry, 170 (March) 205-8 which speak of a 5.86 fold increased risk in relation to alcohol dependence, a 3.85 fold increased risk following cannabis misuse and a 4.7 increased risk consequent upon a history of self harm. This does not equate to reduced life expectancy and Dr Scheepers allowed a 2 year reduction to reflect alcohol addiction but none for self harm.

There was a substantial issue about the effect of Mr Tinsley’s epilepsy. Dr Foster reported that there was an increased mortality risk in relation to uncontrolled epilepsy (which occurred in 30% of all cases) and he noted not only alcohol related seizures prior to the accident but also traumatic epilepsy subsequent to it. This had never been adequately controlled and seizures which were each dangerous to life (whether consequent upon cessation of heart or breathing or choking on tongue or vomit) remained: Dr Foster referred to tonic/clonic seizures at Brook House which he saw in notes and heard about from staff. He agreed that Mr Tinsley’s medication was not optimal (although he was on a medium dose of anti-convulsants) but repeated that even if it was, there remained a 30% risk of it being uncontrolled. He referred to Professor Neary’s report (prepared in these proceedings and in the bundle but not called as live evidence) who anticipated that epilepsy reduced life expectancy by not more than 5 years. Dr Foster put it (together with the additive effects of brain injury, consequent upon the effect of problems in the aged such as strokes, being more serious in an already brain damaged patient) at 3 years.

Dr Scheepers did not defer to the neurologists on this topic and argued that optimal medication would deal with the effect of the epilepsy (as it did in 70% of all cases) and that if he was treated correctly in any event, there would be no reduction in life expectancy. He conceded that there was an increased mortality generally associated with epilepsy which increased dramatically for uncontrolled refractory epilepsy but did not consider there was such an increase in patients with complex partial seizures; he did not deal with the tonic/clonic seizures to which Dr Foster referred.

It is not possible to say if Mr Tinsley will fall into the group of 70% in which epilepsy is controlled if properly medicated or the 30% in which it is not: if the latter, it appears to me that he will be at increased risk. On the other hand, this is not as much a risk for Mr Tinsley because he will continue to be under supervision for the rest of his life. Thus, except rarely, he will have instant attention should he fit. Thus, the risk only materialises in relation to a small window of time dependent on his reaction to appropriate medication. I accept that it cannot be ignored but in my judgment it is modest indeed. The risk in relation to the reduced ability of Mr Tinsley’s damaged brain to deal with ageing disorders is in my view somewhat greater; I agree with Mr Purchas’ submission that Dr Scheepers may have misunderstood Dr Foster’s argument in that regard.

Taken together, it is important not to double count and fully to reflect the undoubted fact that Mr Tinsley will be in a supervised setting so that the real risks of alcoholism, drug abuse and adverse problems from epilepsy are likely to be minimised. Dr Scheepers deferred in relation to smoking and was prepared to allow two years reduction on the grounds of his alcohol problems. There could be no suggestion that these are not additive (because the risks from smoking and from alcohol etc abuse are very different) and given that I accept the 10 year reduction for smoking advanced by Dr Foster, the total reduction on that basis is 12 years. Mr Hunter suggested that the reduction should be 10 years only to take account of features that reduce the risk of mortality such as the fact that Mr Tinsley no longer drives or works in a risk occupation. Mr Purchas does not advance a total reduction in excess of 12 years doubtless reflecting these features (albeit he submits that the reduction sought is modest).

Given the clear evidence in relation to Mr Tinsley’s smoking, I believe that the appropriate reduction is 12 years. The other risks are both tangible and real and it cannot be gainsaid that there could be times when Mr Tinsley puts himself into danger as he seeks an outlet for aggression or other behavioural outbursts. Although I do not go so far as to say that the additional 2 years is modest, that there is a risk is undeniable (even balanced against the mitigating lack of risk to which Mr Hunter refers). An additional 2 years reflects that risk; further, it is Dr Scheepers’ figure as well.

There is a further argument as to the translation of that reduction of life expectancy into a multiplier. Mr Hunter argues that I should use Table 28 which covers pecuniary loss for a term certain; on a 12 year reduced life expectancy from anticipated mortality, that produces a figure of 23.76. That table, however, deals with multipliers that are appropriate where there is a specific prognosis of death such as might obtain in cases of terminal illness: mortality predictions play no part in that calculation although the element is factored into the calculation to identify the term certain. Table 1 on the other hand (proposed by Mr Purchas) calculates a multiplier with a direct allowance for projected mortality. He uses Mr Tinsley’s present age, adds 12 and so arrives at a figure at a 2.5% discount rate of 22.92.

I accept Mr Hunter’s argument that Table 1 covers a cohort which includes those who smoke etc so that there is a real risk that there is a measure of double counting on the basis that smoking, for example, is also more specifically taken into account by reference to the reduction. The cohort, of course, includes those at risk from a wide range of factors and those who live to extreme old age. No evidence was put before me to help me to undertake the exercise of analysing the statistics and, given the very modest difference in multipliers, that is not surprising. In the circumstances, I am not prepared to ‘second guess’ the calculation of the tables and content myself with the figure from Table 1. In that regard, I gain some comfort that I am not being unfair to Mr Tinsley because, along with Dr Foster, I have started from a premise of 20 cigarettes a day, whereas his evidence was that Mr Tinsley was smoking 20-40 cigarettes and, as time passes and spending money becomes more available (as is inevitable after this judgment however much attempts are made to discourage him from drinking), I consider it likely that his smoking will increase. If it did, a higher reduction in expectation of life would be inevitable. In relation to whole life claims, therefore, I apply a multiplier of 22.92.

Although there is no statement in the papers from Mr Tinsley’s mother, it is not in issue that she provided a high level of support for her son both in the year after the accident, after his admission to the Kemsley Unit and following his transfer to Brook House (during which period he returned home approximately every six weeks for the weekend). More recently, the relationship between mother and son has broken down and support has been provided within the context of case management. It is agreed that a commercial valuation of past care provided by Mrs Tinsley can be assessed at £22,767.

The only issue between the parties relates to the question of a discount from the commercial cost of care following the approach set out in Housecroft v. Burnett [1986] 1 All ER 332 most recently in Evans v. Pontypridd Roofing Ltd [2001] EWCA Civ 1657, in which Mr Purchas appeared. One of the bases for a deduction is that payment for commercial care is subject to deduction for tax and national insurance whereas damages are not subject to such a deduction. As to the calculation of the deduction, in the latter case, May LJ made clear (at paragraph 39):

“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 difficulty is that I have no evidence on which to make an assessment of any sort. In his closing submissions, Mr Hunter argued that the care provided “would of necessity [have] been very demanding and at times at personal risk to herself” but that submission is not referenced to any evidence. Given the legitimate point made about tax and insurance, and the presence of Mrs Tinsley at her home at weekends in any event, I do accede to Mr Purchas’ submission that a discount of 25% is appropriate. This claim is therefore valued at £17,075.

A substantial part of the hearing has been devoted to an analysis of the appropriate arrangements for Mr Tinsley’s care over the remainder of his life. That is not surprising because it generates the large bulk of the claim. Furthermore, although it is not relevant directly to issues surrounding loss of earnings and other claims, there are aspects (such as a deduction for the cost of housing which could be provided depending on the regime chosen, the extent of the need for a case manager and transport needs) which may depend on its resolution. I therefore deal with it first.

I start with what Damien Tinsley himself said. Not unnaturally, he was anxious to give evidence before me and it was, of course, valuable that I had the opportunity of seeing and hearing him although Mr Winston Hunter QC on his behalf did not suggest that his ultimate aspirations were attainable or even remotely realistic and, in the light of the medical evidence, regretfully, it is clear that they are not. What is very much in dispute, however, is the importance or significance that should be attached to his own wishes.

In his statement Mr Tinsley was emphatic that he did not wish to continue living in a residential home; he described his inhaling butane gas and seeking to obtain drugs as a result of boredom. What he was most looking forward to was moving into his own home. In evidence, he said that he wanted to get back his life so that he was as capable as he was before the accident if not more so. He said that his life presently consisted of “rehab surrounded by people”, that he could not converse on a natural or intelligent level and that he lived “with idiots”. He said that he wanted more freedom; he resented living in a home which he likened to the care home to which he was admitted as a child. He resented still being treated as a 10 year old; going to the TRU had been a reason to be alive.

Although Mr Tinsley accepted that he did need support maybe for the rest of his life or until professionals saw that he needed it no longer, he also commented that it would be “until I can be normal, settle down and have a family”. He said that he was managing alcohol and went to the local public house with a member of staff for a couple of pints – a drink and a laugh, conversing with his support worker. He wanted to do an NVQ in nursing and support work to help those less able than himself.

Dr Scheepers and Dr Johns had a different view of the significance to be attached to Mr Tinsley’s wishes. Dr Scheepers is of the opinion that when reaching a decision as to Mr Tinsley’s best interests, any care or treatment plan should take into account his preferences and choice. Even if he lacked capacity to consent to treatment, he could have firm opinions and very reasonable preferences regarding accommodation and future care and clinicians should have very clear and justifiable reasons before suggesting that such preferences were not in his best interest and that an alternative would maintain his health and welfare more appropriately.

When Dr Scheepers gave evidence on this subject, he repeated that if Mr Tinsley was in a residential situation, he would be anti-authoritarian and defiant. He was emphatic that his wishes must be taken into account when his appropriate treatment was determined because it was relevant to the way in which he would approach that treatment. He considered that the chances of his becoming amenable to living in a group environment were slight.

Dr Johns, on the other hand, took the view that Mr Tinsley had minimal insight into the severity of his cognitive problems, the risks associated with substance misuse (including alcohol) and into his care needs; his plans as to the future were unrealistic and he lacked treatment capacity. Although his preference for his own accommodation was understandable, the lack of that capacity meant that his preference may not be in his best interests. He elaborated by saying that although his treatment wishes (including the fact that being in a residential setting reminded him of his time in care while young) should be taken into account, these views could not be determinative.

Given the constellation of his psychological problems, I have come to the conclusion that very little weight can be attached to his stated preferences. I recognise his entirely legitimate desire to move away from institutional living. Further, it is not in the slightest surprising that he wishes to live in his own accommodation and obtain what I have no doubt he considers is his freedom; he expects that, with time, he will be able to return to what he perceives would have been his life but for the accident (although in the light of his pre-accident difficulties and notwithstanding the year of real improvement before the accident that perception is more than tinged with rose-coloured spectacles). He does not believe that he will face the problems that others see only too clearly and as to which there is simply no disagreement between the experts.

It is entirely correct to give weight to Mr Tinsley’s wish not to live in an institution. But in large part, the reasons for his preference for his own home are based on how he perceives that he will be able to live in the future (to marry and have a family) and these perceptions are undermined by their lack of any reality. This conclusion is even clearer as the reasons demonstrate an underlying desire (such as to consume alcohol as and when he wishes) that creates a real additional risk to himself and others.

I accept, of course, that if Mr Tinsley achieves his preference, he will start with a positive frame of mind and will, in the beginning, see only the new freedoms. If, on the other hand, he does not achieve his preference, he is likely to be resentful and difficult. Neither of these states of mind will, in my view, persist based solely on this initial reaction. Thus, after a while living in independent accommodation, he will see the true limits of his new position and realise that they do not match his aspirations; he will not be given ‘the key of the door’ or his ‘freedom’. I have no doubt that problems will then ensue: the reason that Dr Jackson advised two carers especially in the evening is because he sees problems and risks arising out of his of going out, socialising and potentially drinking alcohol. Furthermore, I believe that he will come to regard the carers in his home as interlopers, if not custodians, preventing him from living his life and doing as he wishes in the new found freedom of his own home. It is no surprise that Dr Jackson accepted that this proposition, while viable, was “fraught with difficulties and potential risk”.

Conversely, although I accept that Mr Tinsley will start defiant and anti-authoritarian if he does not achieve exactly the scheme that he wants and that he has expressed a wish for, his ultimate reaction is more likely to depend on how he perceives the alternative option, particularly if that is option can at some stage involve a self contained flat albeit within a residential placement. When the initial anger has passed, assuming that appropriate therapeutic and occupational arrangements have been made, although he will continue to resent living in an institution, he will see what he is then able to do which he could not do when at Harnham House. Further, although he will doubtless regard the limitations on his liberty and his ability to do as he pleases as unfair, that state of mind will be no different from the state of mind that he would end up in within the confines of his own home severely restricted by live in carers.

In my judgment, therefore, Mr Tinsley’s preference is relevant to the short term impact of his next move but does not say a very great deal (although it does say something) about the likely long term consequences of that decision. Thus, with the benefit of the medical and other evidence, it is necessary to look at the broader picture and consider whether the regime which is advanced by Mr Hunter reasonably meets his needs. In that regard, his best interests are a relevant consideration but are not, of course, necessarily determinative because reasonable needs may be met in a number of ways and “paternalism does not replace the right of the claimant, or those with responsibility for the claimant, making a reasonable choice”: see Sowden v. Lodge [2004 EWCA Civ 1370, paragraphs 10-11, 38 per Pill LJ. Before considering the prognosis and the approach, it is appropriate first to describe the different regimes for which the parties contend.

First, a word about the background. After his discharge from detention, Mr Tinsley was placed at Harnham House on a temporary basis. His legal and expert teams then attempted to visualise how he might most appropriately be cared for in the long term. They always appreciated that his personal wishes (independent living ultimately on his own) were simply not feasible. In March 2004 (when Dr Scheepers first reported and replaced psychiatric opinion that had previously been obtained on Mr Tinsley), he visualised a personalised 24 hour package of care supported in his own property on the basis that the programme included abstinence from alcohol: he made the point that “no support worker could be able to manage the risks if [Damien Tinsley] was inebriated”. He considered that the fear of further compulsory detention would provide an effective deterrent and incentive for compliance. This was a free-standing arrangement, there being no question of any rehabilitation unit being involved. Without being specific, the Defendant contended that the arrangements made by the Trust were sufficient and appropriate. It is a matter of record that, because of the Defendant’s case as to future care, attempts to obtain interim payments to finance the suggested approach failed twice at first instance (Hughes J and Stanley Burnton J respectively) and once in the Court of Appeal [2004] EWCA Civ 1098 (Thorpe, Clarke LJJ, Munby J).

In November 2004, a new package was advanced by Mr Tinsley’s advisers; this dramatically increased the damages claimed. One result was that the original date listed for trial had to be vacated. This galvanised the Defendant who in a flurry of activity over the last few weeks (extending into the first few days of the trial itself) suggested a number of options; four were the subject of evidence. Although Mr Hunter complained that the case which he was required to meet was constantly changing, by the end of the hearing, there was no suggestion that any of the recent material had caused such prejudice to the presentation of Mr Tinsley’s case or that further time was needed to consider it. Whereas I agree that different proposals have been put forward, given the attendance of all the Claimant’s advisers (and their knowledge based on different professional experiences) of the most recent suggestion, I am satisfied that there is no disadvantage consequent upon late disclosure. Similarly, in relation to new financial claims very recently advanced on behalf of Mr Tinsley, criticised as too late by Mr Christopher Purchas QC for the Defendant, I am satisfied that he also has not been prejudiced by the timing.

The present proposal made on Mr Tinsley’s behalf is that he should be accommodated in his own home owned or rented by the TRU; the proposed address is situated in the village of Pemberton, ten minutes by car from the vocational unit of the TRU. He should then spend part of his day at the vocational area of TRU where he will be able to undertake neuro-behavioural programmes such as problem solving, anger management and coping; he would also be able to access vocational training and activities (for example, joinery, woodwork, landscaping, creative arts, car mechanics) and join in the a social and recreational programme that allows for greater levels of integration (for example, sports, music, cyber café); these latter activities would come with improvements in social behaviour. It is suggested that this facility should take up some 30 hours a week and would require 1:1 support.

The proposal goes on to deal with support outside the TRU. It is suggested that while in his home, Mr Tinsley should have 24 hour supervision and support from trained brain injury rehabilitation coaches initially on a 2:1 basis (i.e. two support workers solely concerned with Mr Tinsley) during the day with a further worker awake during the night together with on call staff from the TRU in the event of difficulty. Dr Jackson explains the need for 2:1 supervision on the basis that Mr Tinsley’s aggressive tendencies require that level of support.

For the long term, it is not envisaged that Mr Tinsley will ever be able to become independent. Rather, he will require a structured support service for the rest of his life and the main aim of the rehabilitation programme is to establish a viable cost effective support service. Dr Jackson postulates if he achieves emotional stability, reliability and responsibility, he will need less support. Further, the time spent at the TRU could increase to 60 hours (reducing the 1:1 direct care) and the home coach attendance could reduce to 1:1 and the night time support modify to sleep in. He also observes that it may ultimately be possible for Mr Tinsley to enter a supervised flat reducing night time support to on call and warden services.

Although he proposed this scheme in October 2004, Dr Jackson then expressed concerns (“viable albeit fraught with difficulties and potential risks”). Further, as again noted by Dr Jackson, it is clear from the incidents of 12^th/13^th January (at a time when Mr Tinsley knew he was on trial and was expecting this hearing), that he put himself and possibly others at risk through social disinhibition and poor judgement. Having said that, it is right to record that Dr Jackson had been pleasantly surprised at the way Mr Tinsley had engaged in the recent visits to the TRU (compared to his previous attendance) and his expressions of willingness to engage.

Before analysing the expert evidence as to this approach, I must summarise the alternatives which were suggested by Mr Purchas. All involve residential accommodation and proceed on the fundamental basis that Mr Tinsley is simply not suited to living in his own accommodation. Thus, the primary choice put before the court (being the last in time to be found) is at Redford Court, a purpose built continuous rehabilitation centre for 24 people with acquired brain injuries in Liverpool which is provided under the auspices of the Brain Injury Rehabilitation Trust (“BIRT”). Many of its clients have additional problems including psychiatric, management of drugs and alcohol, physical and neurological (including epilepsy). It was the subject of detailed analysis in a joint report prepared by Dr Johns, Dr Powell and Mrs Bingham (the care expert advising the Defendant) dated 3^rd February which it is unnecessary to rehearse in this judgment but concludes that it will meeet all of Mr Tinsley’s future needs.

I summarise the position shortly. In the unit, there are 20 large en suite bed sitting rooms (descried as studio type apartments) and, a few steps away from the main building, four self contained flats (that is to say there are a separate bed sit type rooms with en suite facilities with its own common additional sitting room, kitchen and clothes washing facility). This is used to provide a staging post prior to independent living in premises to be built outside the centre and approximately 100 yards from it and is said to have the advantage that it avoids social isolation. Susan Thompson, the registered manager told me that a structured programme of rehabilitation, vocational social and leisure activities can be provided all designed to meet the needs of people after a brain injury. Daily living skills, social and leisure skills are also taught (including socialisation, anger management and money management) and, being only 2 miles from Liverpool city centre, there is access to the many cultural, educational and vocational opportunities that are available.

There are no vocational workshops in Redford Court (although in-house vocational activities include car washing, gardening, DIY) and a significant number of present residents attend courses in mainstream or special needs facilities in the city; many attend with 1:1 support which can be provided. At least one resident has 2:1 support. Psychiatric facilities can be accessed through the GP or privately and neuro-psychiatric help can be obtained; there is an on site clinical team including a clinical psychologist and occupational therapist.

Mr Tinsley’s requirements, as set out in the agreement reached by the Neuro-psychologists to which I have referred above, were discussed with Ms Thompson. She also expressed herself satisfied that Redford Court could meet those needs but she made it clear that admission would require a full clinical assessment by BIRT who would then provide an analysis of his needs and a tailored costing to meet that need. Such an assessment has not been done: indeed, even if this possibility had been suggested some time ago, it is not at all clear that Mr Tinsley would have co-operated with the assessment in the same way that he has declined fully to co-operate with other professional assessments.

I shall return to the expert opinion in relation to this placement but, before passing to the other possibilities, there is one other feature of Redford Court that I must mention which was accepted as being of real value by Mrs Sargent and Mrs Bingham (the care experts for the parties) and which was recognised as such by Mr Hunter in his closing submissions. BIRT provides what is described as a continuum of facilities throughout the country. It was said that if an individual needed change, he or she could move within BIRT. Thus, if there was a deterioration in his condition (which the medical experts were agreed would occur so as to require in patient treatment, if not compulsory detention on average for three months every three years), in addition to local psychiatric services, BIRT had a private facility at York House which admitted compulsorily detained patients (albeit that the authority for that detention would necessarily have to come from independent sources).

York House was one of the options considered earlier by the Defendant’s advisers. It is a secure unit at which all clients have an acquired brain injury (some 25% being physically disabled in addition). A number are held pursuant to compulsory powers of detention set out in the MHA; others are informal patients who could fall to be detained should they wish to leave. Each client has a tailored activity programme and there is rehabilitation and medical input. Like Redford Court, there are some residential properties close to the premises. It was not an appropriate placement for Mr Tinsley at this stage, short of a collapse in his mental health requiring psychiatric in-patient (and possibly compulsory) treatment.

I mention the other options which were the subject of evidence quite briefly. The Willows is a 40 bed independent low secure hospital which admits offenders under sections 37 and 41 of the MHA; 70% of the patients were subject to compulsory detention. It deals primarily with the mentally ill and Dr Graham Powell accepts that its experience of those with head injuries was “limited”. Again, I do not consider this an appropriate placement for Mr Tinsley in his present condition. Further, if his mental health collapsed, I am not at all clear that there are not better facilities to deal with the entirety of his condition than this.

Birkleas Nursing Home is a 60 bed unit, 30 of whose occupants have an acquired brain injury in Shipley. There is a new building with a number of units each one of which houses 7or 8 residents. I heard from two members of the management staff (Irene Jest and Val Bland); it is an open unit where the staff are trained in brain injury care. The perception of the management was that Mr Tinsley’s needs were similar to those of many other residents. The unit provides an escort to local facilities (including a local authority day centre) and the local college which is attended by residents is 5 minutes walk away. Further, the residents can use a social club which has a gym, swimming pool, a bowling green, pitch and put and a restaurant: it also has a bar. They provide about 30 hours of 1:1 support but it can be augmented at an appropriate cost. Of some significance is that they do not have their own psychologist or psychiatrist. Neither Mr Purchas nor the experts whom he called suggested that it was as suitable as Redford Court (with which proposition I agree) and it was costed solely by way of comparison. Although I have considered the figures as a check on my approach, I do not consider it further.

Against the background of the available options, I turn to the question which is at the core of this part of the case namely the appropriate setting in which Mr Tinsley’s future care needs should be provided. Although agreed about his condition, his current health problems, the risk assessment, the prognosis and the necessary elements of any care plan, there is a fundamental disagreement between the experts on the most appropriate setting though which these needs must be met. Dr Scheepers is of the view that only independent living near the TRU with 24 hour support will be sufficient to prevent a downward spiral into compulsory detention. In a joint report with Dr Huddy, they expressed the opinion that maintaining him in a residential group environment against his wishes was unlikely to reduce the risk.

Dr Johns expressed precisely the opposite view: if Mr Tinsley was in his own accommodation, the risk of an adverse outcome to himself and to others (include relapse into heavy drinking or to a psychotic or depressive disorder) increased. Dr Powell observed that his future care would have to be planned on the assumption that he will sometimes access alcohol or drugs causing aggression and potential danger: as a result, he should not be in his own home but a residential unit. I now analyse these views.

Dr Scheepers first reported on Mr Tinsley as recently as March 2004 (although he had been involved in a clinical capacity at the TRU in 1999). He observed that in the previous four years, he had not engaged in the rehabilitation process or reduced his antisocial behaviour. The doctor suggested that Mr Tinsley could benefit from a personalised 24 hour package of care supported in his own property and that there was “no reason why such a programme should not be tried” but he made it clear:

“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.”

The joint report refers to and repeats the opinion that he abstains from all alcohol. It suggests a ‘token economy’ (so that Mr Tinsley does not have access to sterling) and comments that without such controls he is likely to abuse alcohol and other substances. Having said that, when cross examined, Dr Scheepers accepted that there would always be a high risk of his binge drinking and that a care package in his own home would be prone to breakdown with episodes of alcohol abuse and mental health problems. He agreed that the proposal was experimental, fraught with difficulties and potential risk, and that he could resent having carers in his own home which could give rise to high tension. He pointed to the problems of Mr Tinsley’s intolerance of other residents and the consequent risk of a breach of duty on the part of the providers to those clients.

The difficulties surrounding the requirement of abstinence were reflected in the way that Dr Scheepers expressed himself in that part of the joint statement prepared with Dr Johns which recorded disagreements. Having recommended own accommodation with 24 hour support, the statement notes:

“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.”

Notwithstanding the problems, the doctor observed in writing that unless a future care package attracted at least some co-operation and support from Mr Tinsley, he was at risk of ending up in a medium secure facility with severe restrictions to his freedom. In a letter dated 2^nd February 2005, he put it this way:

“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 Scheepers premises his opinion on Mr Tinsley’s abstinence (“no support worker could manage the risks if he was inebriated”) while at the same time recognising that he will be prone to binge drink. On the other hand, he anticipates that if Mr Tinsley does not achieve his wish to live independently (which is, at least in part, so that he can be free to do what he wants) no approach short of inappropriate use of the MHA will result: it is sufficient at this stage to make it clear that I do not accept that mental health professionals will use (or be allowed to use) the MHA inappropriately or that it is inevitable that no measure, short of compulsion, will render Mr Tinsley amenable.

Dr Huddy’s view was expressed in the joint report and also reflected in the joint neuro-psychological statement agreed with Dr Powell put in this way:

“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.”

When giving evidence, she agreed that Mr Tinsley was grossly irresponsible and indulged in sexually inappropriate behaviour; while recognising that if freedom was increased, the problems would increase, she believed that he needed to live separately but within the system (“a place of his own on campus”). She accepted that if he was allowed into the community without support, impulse driven behaviour and seeking alcohol would make it very difficult. The extent of the necessary support may be derived from the statement jointly prepared with Dr Powell, when it was agreed that a “significant” amount of 1:1 support would be necessary.

Turning to the evidence called by Mr Purchas, Dr Johns has consistently reported over a three year period. As long ago as November 2001, when Mr Tinsley was still compulsorily detained, the doctor considered that although over the next years, he would stabilise sufficiently to justify transfer to supervised community accommodation such as a hostel, he would remain at high risk of relapse due to alcohol misuse, aggression and sexually inappropriate behaviour. In 2003, he expressed the view that living in the community with a 24 hour team of carers would increase a risk of social isolation (his main social contact being his carers). In February 2004, he wrote:

“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.”

In March 2004, he commented that it was apparent that Mr Tinsley was powerfully driven to seek alcohol and, from time to time, intoxication. Commenting on the joint report of Dr Scheepers and Dr Huddy, he said that he was of the opinion that maintaining him in a residential group enviroment against his wishes would lead to less risk of breakdown and violence to others than his expressed preference for living on his own with support. In the joint statement prepared with Dr Scheepers, his disagreement on this aspect of the case was expressed:

“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.”

It is clear that at the root of the problem is Mr Tinsley’s drinking. When giving evidence, Dr Johns analysed the problem that alcohol poses observing that Mr Tinsley had a severe drinking problem before the accident which had led to alcohol related seizures and although he had then spent about a year at Alcoholics Anonymous, the concept of abstinence was complex and required application; he would not be enthusiastic about abstinence because he liked drinking and neither did he have the mental apparatus to maintain abstinence. Therefore, short of detention, the model had to be one of containment. He did not like limit setting and even two support workers, in his own home, would face difficulty trying to persuade him to do something; in a residential setting he believed that it would be easier.

When cross examined, Dr Johns accepted that Mr Tinsley had sufficient cognition to know that he will not be compulsorily detained and that in seeking to establish a successful regime, its base would have to be co-operation. That co-operation, however, was not fixed but could be changed and negotiated. Initially, if in his own home rather than a residential setting, the likelihood of co-operation would be greater but it would still be negotiable and the benevolence of the regime demonstrated to encourage him to accept the position. There would have to be a gradual introduction and persuasion. He did not accept that a failure to accept the placement would justify grounds for detention.

Dr Powell repeated his view as set out in the joint statement which he made with Dr Huddy. He expressed this point as early as October 2003 (albeit in relation to the plan then put forward) in these graphic terms:

“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.”

In his most recent report (dated 2^nd December 2004) Dr Powell commented on a number of the reports. In relation to the joint statement of Dr Scheepers and Dr Huddy (that maintenance in a residential home against his wishes was unlikely to reduce risks) he repeated that any environment was going to be against his wishes because what he wanted was totally unrealistic – “complete independence, unfettered access to pubs, and his hands on all his money”. He did not perceive his environment as trying to help him but rather, as he periodically strongly articulated, as trying to thwart him. He then expressed the opinion:

“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.”

When giving evidence, Dr Powell noted that Mr Tinsley had shown he could behave in a largely acceptable manner (in Brook House) but that he had little insight into his own future. Mr Tinsley had an expectation of considerable freedom, including access to alcohol. This ambition would be thwarted and even the best attempts at de-escalation would lead to aggression and a real risk for two carers in what he would perceive was his home. It was better, thought Dr Powell, that the problems of his care were diffused across a range of staff.

Dr Powell was cross examined about Mr Tinsley’s likely attitude to other residents. He agreed that he would present a very difficult management problem. He was intolerant of certain categories of people and used racist language (part of his personality disorder and frontal lobe syndrome); this intolerance extended to those with physical disabilities and those suffering from mental illness although at TRU he had shown himself capable of being supportive of the less able. He was impulsive and would speak his mind and behaved in a sexually inappropriate way. Dr Powell considered that this was extremely common in those with this syndrome. These features were the reason for the need for additional support in the introductory and assessment phase: the need to behave tolerably with others would be specifically targetted. Although it was possible that a provider could say that they could not manage, he did not believe that would be the case. He said that he was not aware of anyone who had to live in his own accommodation because of problems in a group situation: Mr Tinsley had not shown many problems with other residents at Brook House and in Harnham House, it was when affected by alcohol that he had caused problems with others. That would require targeting.

Dr Powell agreed that Harnham House had not been prepared for Mr Tinsley or for the real nature of his problems; the message of preferred abstinence had not been communicated. He repeated, however, that Mr Tinsley would access alcohol because he had no insight into its effect and was sufficiently impulsive (and, it seems appropriate to add, strong willed) to do so regardless of what anyone else thought.

Given the clear agreement on the nature and extent of Mr Tinsley’s condition, its effect and the risks which it generates, along with the additional common ground (expressed with varying degrees of force) that he would access alcohol and that serious difficulties would flow, it is perhaps surprising that the views of the experts as to the appropriate regime are so polarised.

I confront head on the question whether the model proposed on Mr Tinsley’s behalf (own accommodation with 2:1 daytime support and 1:1 waking night support) would meet his reasonable requirements. Broadly, for the reasons advanced by Dr Johns and Dr Powell set out in their reports and summarised above, I do not believe that it would. In deference to Mr Hunter’s arguments, I elaborate further but these reasons are not intended to be exhaustive.

I accept, of course, that a residential option will be resented enormously by Mr Tinsley but it provides a structure to his life which will simply not be there in his own accommodation. Whatever he might, for twelve months, have achieved before the accident and whatever the reason for his present relationship with alcohol, it is very clear that he is not prepared to be abstinent. Even in the few weeks he has been going to the TRU and knowing that the trial date was fast approaching, he has demonstrated on at least one occasion that he has not wanted to take part in the activities. In his own home, a front door away from the outside world, I do not believe for one moment that he will tolerate being provided only with TRU token money and no ‘freedom’. Life will become a series of negotiations between him and his carers as they try to limit his behaviour but are powerless to stop him going out. Those limits will be pushed ever and ever further out. If he does drink, I have no doubt that he will become aggressive and very difficult to manage even for two carers. In my judgment the structure will inevitably break down. From residential accommodation he will also want to access alcohol but there will be an extra layer of support systems through which he will have to work: he will not be simply a front door away.

It is of value to underline some aspects of Dr Scheeper’s views which recognise this prospect. Initially, he was only prepared to support 24 hour supervised care “so long as the programme included abstinence”. He spoke of the inability to manage Mr Tinsley if inebriated and the dangers of the programme. The present suggestion only emerged at the end of October 2004 and it is the presence of TRU, nearby and on hand, which is said to make the difference. But the TRU does not reduce these dangers if Mr Tinsley is not prepared to co-operate. It is not difficult to see why Dr Scheepers accepted in cross examination the proposition (taken from an observation of Dr Jackson) that the proposal was experimental, fraught with difficulties and potential risk.

Further, the need for night time support from a worker who will be awake (as proposed for the trial period) is, in fact, a recognition not that Mr Tinsley will need some help during the night hours because of his condition but rather that if he takes it into his head to leave the property and go out, steps will have to be taken to look after him. Such a proposal either calls for too much care (because he will be responsible enough to accept a rule that he does not leave the premises between the time of his final return and the morning and so the alert carer will do nothing) or too little (for if he does choose to leave the premises, it is unlikely that one person will be able to cajole him into staying or returning). It will not take many emergency calls to the TRU for help to prove that this regime is not viable.

In that regard, although it is not part of the Claimant’s case that this awake night time care will be reasonably necessary for the entirety of Mr Tinsley’s life, but rather only for one year, it is very difficult to see what it is suggested will happen after one year to make such a provision unnecessary. Efforts have been made to rehabilitate Mr Tinsley over many years without appreciable success. The agreed psychiatric evidence is that he may show improvements in behaviour when in a highly supported care setting (subject to set backs) but it is most improbable that there will be any further improvement regarding his organic personality disorder or dysexecutive syndrome. The neuro-psychological agreement is that the latter is the basis of his impulsivity, aggression, lack of insight/awareness and lack of compliance to rules.

Neither is there any “Plan B”. Recognising that Mr Tinsley will, at least occasionally, access alcohol and suffer such mental breakdown as requires his inpatient admission whether compulsorily or otherwise for an average of three months in three years, it is difficult to see how appropriate staff will be motivated to stay while he is an inpatient (for the original plan was that they would have to be kept on while he was away because it would be very difficult to collapse the package and set it up again), let alone why they will be motivated to persevere given the extent to which he will wish to access alcohol which, in the light of the agreed evidence, is unlikely ever to change.

Thus, in my judgment, this proposed regime does not meet Mr Tinsley’s reasonable needs. That is not to say that a residential option will not create very real difficulties for those required to manage Mr Tinsley particularly as his hopes of his own accommodation have been built up with this case. In the short term, intensive efforts will have to be made to engage him in the advantages of a new placement and, even if he accepts that to be so, there will undoubtedly be occasions when his resentment will flare up. I believe that these problems can far more readily be met in the structured setting of somewhere like Redford Court under the auspices of BIRT which has a wide range of alternative facilities available of both greater and lesser security to cope with any problems that are otherwise insurmountable or to provide a carrot (however difficult it might be to meet the requirements) in the event of real improvement. I do not accept the suggestion in evidence that it is inappropriate because of lack of facilities and although I have taken into account the fact that Mr Tinsley can be antagonistic to the physically disabled (a number of whom are at Redford Court), I do not believe that professional carers with experience dealing with the brain damaged will be unable to deal with this potential difficulty.

Further, although Mr Tinsley has yet to be assessed by BIRT, in the light of all that I have heard both from employees of BIRT and the professional witnesses who have had patients and clients at BIRT establishments, I have no doubt that those responsible for his assessment will consider that he can properly be placed at Redford Court. In the unlikely event that they take a view that he needs greater security, such a conclusion only serves to underline how unrealistic was the model of own accommodation near to the TRU and how inevitable the breakdown of that arrangement. I am reinforced in my conclusion in this regard by the fact that all the experts spoke of the high standing of BIRT (“one of the premier brain injury service providers”: Dr Scheepers) and that Mrs Maureen Bingham’s account of Redford Court in her statement of 9^th February 2005 was essentially agreed by Mrs Maggie Sargent.

On the basis that I was not prepared to accept the model proposed on Mr Tinsley’s behalf, both sides made detailed submissions as to the extent to which Mr Tinsley would require support in a residential setting at Redford Court. It was common ground (as is reflected in the Joint Statement prepared by Mrs Sargent advising the Claimant on care needs and Mrs Bingham advising the Defendants) that he needed “24 hour care and supervision with elements of 1:1 care and of 2:1 care”: the difficulty is in deciding the daily requirements for each. Mrs Sargent and Mrs Bingham both deferred to the medical experts on both placement and extent of provision.

In fact it was Dr Huddy and Dr Powell who detailed their opinion as to the amount of support that Mr Tinsley would need. Dr Scheepers did not discuss the specific support if he was not placed in his own accommodation. Similarly, Dr Johns did not condescend to detail but he adopted the agreed approach of the neuro-psychologists. When giving evidence, he said that even within an establishment, there would be a need for 1:1 support albeit not required all the time. He did not visualise someone standing next to his shoulder but rather that on a frequent basis his needs would be assessed and support tailored to his requirements.

Thus, I turn to Dr Huddy and Dr Powell and start with their agreed statement which was in these terms:

“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.”

When she gave evidence, one of the concerns that Dr Huddy expressed about residential placement was the need to monitor him for misbehaviour of a sexual kind at night; she considered that this would require a high staff ratio because he could not be reasoned with. She went on that if he got hold of cannabis or alcohol, a 2:1 ratio would have to be available and that 2:1 support would be necessary in a recreational setting for the rest of his life. In answer to questions which I asked she believed that if going to the TRU he would initially need one person with him all the time “but after years, maybe not”; going out two people would be necessary with the objective of only one in the long term which “might take a very long time”. She considered that some activities “around Christmas” will always require two people. She believed that he would never be able to live in a house on his own without wake in or sleep in support at night and that at Redford Court she would be bothered about the other residents.

In his most recent written report, Dr Powell spoke only about “appropriate levels of top up support”, but when he gave evidence, he noted (as Mrs Thompson had told me) that the basic fee for residence at the premises included some 20 hours individual support. He recommended 32 hours of additional 1:1 support representing 16 slots each lasting two hours distributed throughout the week. He believed that it was unlikely that Mr Tinsley would have two outings each and every day and that he needed “down time” with part of his day spent out of the unit, part in the unit and part at rest. For the assessment period, he suggested 50 hours on top of the basic provision of 20 hours to allow for a measure of 2:1 support and he also allowed for a contingency of 6 weeks per annum (that is 192 hours per annum) as a contingency. He repeated the observation that Mr Tinsley would resent someone at his shoulder all the time and posed the rhetorical questions, how much input could he take and how many slots could be filled.

Mr Purchas argued that this material from Dr Powell was the only evidence before me as to the calculation of the added need and therefore I should accept it. He challenged the submissions made by Mr Hunter (as alternative to his primary case for own accommodation near the TRU) as without foundation but in my judgment it would be wrong to characterise them in that way. After all, the evidence in support of the primary case spoke of the need for 24 hour 1:1 carer support and part 2:1 and although that underlying premise (own accommodation) has been rejected, the proposition that he should not be left to his own devices without supervision of some sort has not. Mr Tinsley would not have been in his own accommodation for large parts of the day and it was suggested that he needed 1:1 support even when accessing the vocational units at the TRU. It is legitimate to argue that accessing vocational or other courses outside the sheltered setting would create greater risk and be more demanding of support.

I turn, therefore, to Mr Hunter’s alternative case as to the reasonably required additional support at Redford Court, expressed in his closing submissions. He argued that Mr Tinsley would require 24 hour support, being 1:1 for all journeys away from the residential placement and 2:1 during periods of aggression. Put shortly, he suggested that for the first 12 months, Mr Tinsley would require 14 hours a day of 2:1 support. In addition, at night, to cope with the potential problems likely to be caused at that time , he should have an additional 6 hours (reflecting a suggestion of 10 hours night support costed at 6 hours). This amounts to 34 hours support a day. After the initial 12 months, he should have stabilised so that his need for 2:1 support could be reduced to 1:1 thus reducing to 20 hours a day. He argued that although Redford Court offered 20 hours 1:1 care, this should not be taken into specific account because it was difficult to see how this amount of care could be offered (given the number of clients and staff); further, there was evidence that it was reflected in the assistance provided in getting up and ready for the day etc which would not be reflected in the support otherwise provided.

In my judgment, neither of these fully approaches fully reflects the reality of the life that Mr Tinsley will face. I readily accept that Mr Tinsley most assuredly will not need a supporter by his shoulder all day and every day especially while in the unit where he might be relaxing, listening to music or doing any number of things that he can do on his own. 24 hour supervision is not the same as 24 hour individual support. Neither do I accept that he will require specific support at night. While in the main building, in my judgment there will be sufficient night time waking support (three workers) to cope with occasional difficulty and CCTV monitoring will identify when that difficulty is likely to arise; he will not be able to progress to his own flat unless and until he demonstrates that he does not create any problems at night and, in any event, if necessary, I do not believe that it would be very difficult to provide remote surveillance of the common parts of the flats.

On the other hand, however, I do not consider that it will be enough to provide him with 16 two hour sessions out of the placement (where I am satisfied that he will have to be supported at all times). One of the criticisms of own accommodation is social isolation; the benefit of a placement near to Liverpool City Centre is that there is an enormous range of activity reasonably available and, in order to meet Mr Tinsley’s reasonable needs, it is important that his days are full with different activity whether planned or spontaneous. I accept that the 1:1 support available at Redford Court will provide him with back up in the premises during the day but it will not even start to satisfy his need for support when out.

In the circumstances, in my judgment, reasonable support additional to that provided within the basic charges at Redford Court will be 7 hours a day during the day and 3 hours during the evening with a further 6 hours during each week to provide 2:1 support for those activities likely to create the greatest risk (likely to be in the evening). For the first 6 months, the 6 hours weekly additional allowance should be replaced by an additional daily allowance of 3 hours for more frequent 2:1 support to reflect the increased tension caused by the new regime which is likely to manifest itself during certain activities (such as might lead to problems with aggression). Whether any of the additional hours are taken during the day or in the evening will be a matter for those arranging Mr Tinsley’s timetable to negotiate with him. If (as I consider likely to be inevitable) he is to frequent any premises where alcohol is available, this will be the time for such support but I do not visualise that he will do so every day of the week: a long trip during the day may very well require 2:1 support; this will be balanced by an evening spent watching the television or indulging in other activities in the unit.

To the basic fee at Redford Court and the cost of additional support must be added a sum to reflect the cost of vocational and other activities. Although the TRU provide a specific figure for vocational activities (all of which are provided on site), there is no such additional cost at Redford Court. Mrs Thompson said that clients did not tend to have to pay for the many educational placements available in the area. In any event, the cost was modest; Mrs Bingham said that most access courses cost about £20 per term and were ‘roll on/roll off’ so that attendance could be sporadic; NVQ courses could be in the order of £100 per annum.

Under this head, Mr Hunter claimed a similar sum to that charged by the TRU (£235 per week) but I do not consider that to be comparing like with like. The cost of gym membership, football tickets etc (examples given by Mr Hunter) are expenses likely to have been incurred in any event; guitar lessons might be a different matter. I note that the cost incurred by a support worker in accompanying Mr Tinsley on social outings is agreed under the heading of Occupational Therapy. Suffice to say that I am prepared to allow rather more than Mrs Bingham’s assessment of the cost of publicly provided courses and without other specific help, doing the best I can, I allow £50 per week.

Allowance must also be made for the prospect agreed by Dr Scheepers and Dr Johns that Mr Tinsley will require 3 months in 3 years of in patient treatment (whether as a consequence of compulsory detention or otherwise) which broadly equates to 4 weeks per annum (the figure taken by both parties). Mr Hunter has submitted that the proper way of providing for the cost of that intervention is to take the charge for York House at Band 1 Phase 1 which reflects the Rehabilitation and Assessment phase with 24 hour 1:1 support. This amounts to £3,682 per week and is claimed as an additional cost (bearing in mind that the accommodation at Redford Court will have to be kept open for him), deducting from the additional cost of York House only the cost of additional support care for that period. Mr Purchas argues that the appropriate level of charge at York House is Slow Stream Rehabilitation Phase 2 Band 2 (7-15 hours additional daily support) and costs £2,501 from which should be deducted the entirety of the cost of Redford Court.

There is no evidence before me relating to the interplay of charges between different BIRT establishments or as to the extent that if a client at one establishment needs the more extensive facilities at another, either there has to be a reassessment at the second establishment or an allowance can be made at the first. Doing the best I can, although it seems to me not unrealistic to anticipate that the oversight provided by the clinical directorate at BIRT would obviate the need for further assessment, the acute beds are housed on Phase 1 and it would only be in the event of acute illness or other need for containment that reference to York House is likely. On the other hand, it seems that the security itself would be sufficient for most purposes and I do not accept that in that setting Mr Tinsley would require 24 hour 1:1 support. I would therefore allow Phase 1 Band 2 i.e. £3,245 per week.

Dealing with the question of charges for Redford Court while Mr Tinsley is an in patient at York House, on the basis that beds are always being sought and can be utilised when available (which certainly appears to be so at Redford Court where there is said to be a waiting list for admission) again it seems not unreasonable that room charges would remain for a client requiring short term but more extensive psychiatric treatment. I am not in a position to say how support staff could be deployed during that absence (because nobody told me) but I am content to adopt Mr Hunter’s approach. I similarly deduct the cost of vocational activities during this period.

This means that the cost of weekly care at Redford Court (in each case to the nearest pound) is as follows:

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

To calculate the annual cost of care, 4 weeks of the additional cost of York House less extras at Redford Court to which I have referred above (amounting to £9,116) must be added to 52 weeks of the general cost of Redford Court (amounting to £116,792). Thus the annual cost of future care on this basis totals £125,908. Given the further additional care for the first six months (being 3 hours each day rather than 3 hours twice a week), £4,446 must be added. I do not discount for the fact that it might be some months before the move to Redford Court can take place: the additional cost is available for whenever that occurs and in the meantime the extra money can be used to provide additional support at his present location.

Subject to the argument of ‘no loss’, and applying the multiplier of 22.92 to the multiplicand of £125,908, this head of claim is therefore valued at £2,885,811 to which must be added the additional sum of £4,446 making £2,890,257.

I am conscious that this provision does not equate to Mr Hunter’s claim for support even assuming that rejection of the own accommodation proposal. I take the view, however, that it reasonably meets Mr Tinsley’s needs. Further, I am also aware that it could be suggested that whatever are Mr Tinsley’s present needs, my allowance takes him forward for the rest of his life and that in his closing years, vocational courses will cease to hold him and he may not want to be going out as much. In the earliest of years, I cannot exclude the possibility that he may need more help than I have provided. To some extent I have taken a broad brush across the whole of the future and tried to reach a fair and balanced conclusion as to reasonable need. That the support will not be used precisely in the way that I envisage is, I fear, almost inevitable.

At the heart of the submissions made by Mr Purchas is the contention that the Trust will provide for Mr Tinsley’s future care needs and that, as a consequence, because of the well known principle set out in Hodgson v. Trapp [1989] AC 807, no award should be made in respect of costs which were not going to be incurred. Fundamental to the submission, therefore, is the proposition that, as a matter of law, the Trust were under an obligation to provide for Mr Tinsley irrespective of whatever damages he might recover and notwithstanding that such provision might simply provide a windfall for a defendant tortfeasor. I need no persuasion that such can be the case, for it has been held so in relation to the provision of care and accommodation pursuant to the provisions of section 21 of the National Assistance Act 1948 and the regulations thereunder: see Firth v. Geo Ackroyd Junior Ltd [2001] Lloyds LR Med 312, Bell v. Todd [2002] Lloyds LR 12 and Ryan and another v Liverpool Health Authority [2002] Lloyds LR Med 23 and analysed in the Court of Appeal in Sowden v. Lodge, Drury v Crookdale [supra]. The question, of course, is whether this statutory regime produces the same result.

Section 117 of the 1983 Act provides under the heading “Aftercare” as follows:

“(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.] ”

The Trust is a body set up pursuant to section 31 of the Health Act 1989 and is a Care Trust pursuant to section 45 of the Health and Social Care Act 2001: it was established by the Manchester Heath and Social Care Trust (Establishment) Order 2002 (SI 2002/1251). The services to which any discharged patient may be entitled are community care services for the purposes of the National Heath Service and Community Care Act 1990 and require assessment under section 47 (“Assessment of needs for community care services”) the relevant part of which provides as follows:

“ (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.”

This assessment is not a once and for all exercise. First, the duty is owed to a person who is discharged from compulsory detention and will continue until he is further detained (which, in this case, is not unlikely) when it will arise again although the Trust (or similar organisation) may differ depending on his previous placements. Secondly, it is not suggested that the provision may not be reviewed: that, indeed, is the exercise presently being undertaken by the Trust in relation to Mr Tinsley.

Furthermore, the duty under section 117 is not open ended. When dealing with the level and nature of services to be provided under section 117, Lord Phillips MR, in R v Camden and Islington Health Authority ex parte K [2001] EWCA Civ 240 (at paragraph 29):

“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.

The problem about resources was recently underlined by Scott Baker LJ in W v. Doncaster Metropolitan Borough Council [2004] EWCA Civ 378, at paragraph 59, in these terms:

“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.”

Nevertheless, it is important to make clear that the obligation to provide needed services is independent of other statutory provisions. Its provision is free of charge and there is no power of recoupment. Further, it is not dependent on means testing. In R. v. Manchester City Council ex parte Stennett [2002] UKHL 34, the House of Lords considered whether local authorities were entitled to charge for after care services and rejected the proposition. Lord Steyn (with whom the remaining members of the House of Lords agreed) himself agreed with an observation of Buxton LJ in the Court of Appeal that “it would be surprising if those especially vulnerable who had been discharged from compulsory detention were required to pay for what is essentially a health related form of care and treatment” (see paragraph 14). Lord Steyn went on (at paragraph 15):

“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.”

Of course, the question in Stennett is not the question before me. I am not concerned with whether there is a power to charge but rather whether, when exercising its statutory power, either in connection with the provision of aftercare or the review of such provision, the authority can take account of the extent to which the discharged patient has ample provision for aftercare such that he need resort to the use of public funds. The issue could be alternatively formulated by asking whether when assessing damages the Court is constrained by the principles enunciated in Hodgson v. Trapp to identify this public source of funding and relieve the tortfeasor of the duty which would otherwise have been imposed to provide for his victim’s reasonable needs.

Finally, before embarking on an analysis of the approach of the Trust to this duty, I should add that it is mandatory and owed specifically to any person who comes within its ambit ( R. v. Ealing District Health Authority ex p Fox [1993] 3 All ER 170, W. v. Doncaster Metropolitan Borough Council (supra). Furthermore, the duty does not end simply by consulting professionals. If the professionals are unwilling to make the necessary arrangements the authority must make further attempts to make them through its own resources or obtain the relevant services from another authority.

In those circumstances when it is contended that an authority fails in its duty, it can be subject to judicial review. It was by threatening judicial review that Mr Tinsley’s advisers obtained for him a placement at Harnham House at a cost of some £1,800 per week which cost the Trust has been meeting since Mr Tinsley’s discharge from section 3 compulsory detention.

In Greater Manchester, the scheme operates through the Trust which is a joint venture between the local authority and the health authority to provide the appropriate health and accommodation needs of those, among other things, subject to s. 117 aftercare. I was assisted by Ms Lacey Ingham, Director of Social Care at the Trust who gave evidence pursuant to the order of McCombe J on the basis that both sides could cross examine her. To some extent, with the benefit of her own legal advice, she was providing her perception of the Trust’s duties and the statutory basis for that perception. I say immediately that, although extremely helpful (and the source of part of the foregoing analysis), I recognise that my obligation is to go back to the legislation and reach my own judgment as to the nature of those duties.

Of particular value was Ms Ingham’s insight into the size of the problem in Manchester. The Trust’s budget for non NHS placements amounts to £6 million per annum: it is currently £872,000 overspent and having an obligation not to spend more than its allocation, it is reviewing its expenditure in order to reduce the deficit. She told me that unless the Trust could keep its budget under control, it may not continue. She said that the Trust was currently funding 90 individuals in a residential or nursing facility (a figure which was relatively steady and cost between £300 and £1,800 per week, Mr Tinsley falling into the most expensive category) and 100 in supported accommodation (a number which was increasing). She went to explain that the average cost for those suffering from mental health difficulties was £600-£700. The Trust had never funded in excess of £1,800 per week and had rejected a package of the type proposed by the TRU. It had been prepared to fund a placement at a BIRT establishment in Leeds costing £1,120-£1,200 per week. Nobody has put forward such a placement to me.

Ms Ingham told me that although means testing would not be undertaken in the case of any individual, the Trust would take the financial position of that individual into account. The example that she gave was that if a patient had his or her own home, that would be relevant and would mean that the Trust did not have to provide accommodation; she described this as a grey area. She also said that a large award of damages may not be relevant to need but it may be that the recipient of such an award would not want what the Trust could afford. If it was solely a matter for the Trust, it would be a question of the best facility for the money that the Trust might be able to spend.

As for Mr Tinsley himself, she said that a review of his position was awaiting the decision in this case; in the light of repeated failure of rehabilitation, further efforts along that line would not necessarily be made. She provided the result of a recent attempt to examine Mr Tinsley by the Trust’s Consultant Clinical Neuropsychologist, Dr Al Ahmar. It is clear from his report (annexed to her statement and relevant to their consideration of his case) that Mr Tinsley had not wished to participate in the assessment, then refused to co-operate and eventually asked to terminate the interview. His behaviour during a second interview was no different.

As for the future, Ms Ingham told me that the Mental Health Bill currently before Parliament and being considered in Joint Committee repeals section 117 albeit with transitional provisions to protect the entitlement of those currently receiving services (but quaere the position of someone who has been receiving services, is then compulsorily detained and then released a second time). The Explanatory Notes make it clear that the intention is to restrict the circumstances in which charges cannot be recovered. Whether this Bill might be enacted is an open question.

I recognise the nature of the absolute duty falling upon the Trust but go back to the way in which it must exercise that duty. First it must assess the extent to which any person for whom it may provide community care services needs those services. Then, having regard to that assessment, they shall decide whether these needs “call for” the provision by it of any such services. At the time of Mr Tinsley’s discharge from compulsory detention, he was assessed as needing the type of facilities that Harnham House could provide and his needs called for that provision. He had nowhere else to go, no money to provide for himself and was undeniably vulnerable. Similarly, if the assessment was made today (before any award of damages), the position is identical.

Assuming that the Trust is in its present precarious financial state, take now the case of a multi-millionaire who is compulsorily detained following an accident for which there is no question of pursuing a claim for damages but who now needs 24 hour waking support. His needs are the same irrespective of how they can be met but can it be said that his needs “call for” the provision by the Trust of that support? To say that they do not, is not to exercise a means test: a means test is a mechanism whereby the provider tests eligibility for a particular service. Rather, it is to have regard, in a more global sense, to the resources available, the other calls on those resources and the extent to which that particular person requires Trust support. In reality, this is no different from the Trust taking into account the fact that someone who applies to it for support has a house which can provide the basis of any further support which he or she may require.

Neither is the analogy with section 21 of the National Assistance Act 1948 apposite. The mandatory obligation in that case is not subject to any caveat concerning resources: it is means tested and the reason that accommodation is provided to those with substantial damages awards is that those awards, if in the Court of Protection, are excluded from consideration. The recipient has an extensive statutory right to choose his own accommodation and the level of care, which can be provided by way of top up.

In these statutory circumstances, there is no right of choice and no provision for top up. Although Mr Purchas submits that there is a strong likelihood that the Trust will approve Redford Court, will fund the basic fee and will fund additional support to 50% of the necessary 1:1 top up (on his submission of the provision required – perhaps only 25% of the additional support I have found reasonable), he does so on the basis that not to do so would cause the Trust to fail to comply with its statutory duty. He does not address the financial difficulties to which Ms Ingham referred.

Neither does Mr Purchas deal with the equally likely prospect that the Trust will agree to fund the Leeds placement but will not permit the money that would have been put into that placement to be transferred elsewhere with Mr Tinsley (and, thus, the Defendant) picking up the additional costs incurred. The statutory basis whereby this is possible under the 1948 Act simply does not exist in this legislation.

I simply do not know what the Trust will decide is an appropriate placement for Mr Tinsley or what it will be prepared to fund. In the light of the evidence of his reaction to the attempt to examine him, it is clear that he has not been interested (for whatever reason and perhaps not unconnected with the litigation) in pursuing a Trust option. Further, it is beyond doubt that the financial position of the Trust is such that there is no question of it funding a regime which Mr Tinsley would be prepared to accept, or even the regime which I have found to be reasonable to meet his needs. Further, absent statutory provision to allow money to be put to a different regime, I am not prepared to accept that it is reasonable to require Mr Tinsley to accept what the Trust proposes and, assuming that he is not unreasonably failing to mitigate his loss by accepting alternative provision, there is no basis for deducting what might be the cost of what the Trust might offer.

Mr Purchas alternatively submits that if I conclude that the Trust was unlikely to fund Redford Court or could not reach a conclusion one way or another, I should consider what discount should be made on account of the chance that the Trust might fund the cost whether or not that chance was more or less than 50% provided that it was not merely fanciful. The argument goes on that I should then discount the award to allow for that prospect. Suffice to say, given that I find that the Trust is unlikely to be assisted by Mr Tinsley to reach any conclusion as to placement, is extremely unlikely to fund Redford Court and does not appear to be under any statutory obligation partially to fund a placement, I am not prepared to discount the damages to reflect the chance that it might.

In the circumstances, I do not need to consider Mr Hunter’s alternative arguments touching upon the likely changes to the law; whether the evidence relating to the Bill is sufficient to allow a different conclusion to be reached to that expressed in Firth v. Geo Ackroyd Junior Ltd (supra), I leave open. What I am prepared to add, however, is that this situation is different to that which obtained in that case. Here, it is common ground that Mr Tinsley may require to be compulsorily detained in the future whereupon any support which he then has under section 117 will go; on discharge, his position falls to be considered afresh. It is by no means clear that trying to make a reasonable estimate of the outcome at that time should not also involve a consideration of evidence (rather than speculation) as to the likely position of the Trust both in fact and in law. Beyond that, however, I do not go.

I leave this analysis with one further comment. Given the obligations of the Trust, the shortage of resources to meet all those obligations and the likelihood that need will continue to rise without commensurate increase in resources, I am prepared to confess that, although I will dutifully apply my view of the law to the facts of any case (and I do not apologise for advancing the arguments in Firth), I am one of those judges to whom Longmore LJ was referring in Sowden v. Lodge (supra) at paragraph 92 when he said:

“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.”

It is common ground that Mr Tinsley has required and will continue to require the assistance of an experienced Brain Injury Case Manager. In relation to the past, a total of £23,361 (to the nearest pound) is admitted: this has involved three different case management advisers, the last of whom is Mrs Jackie Dean. The last three years have clearly thrown up a series of problems for case management and no point is taken about the inevitable cost involved in the change of personnel. Doubtless, not least because past costs include an element of support, it is not suggested that this figure is a necessary guide to the future.

Mrs Sargent expressed the view that this was an extraordinarily difficult case and Mrs Bingham expressed concern that the Manager should have a psychiatric and social work qualification. Both, however, agreed that the present case manager, Mrs Dean, although without such qualification, is experienced as a case manager dealing with the brain injured. Mrs Bingham went on to observe that the cost of any case manager would broadly be the same: I do not therefore comment on the choice of Mrs Dean made by Mr Tinsley’s advisers.

Mrs Dean believed that her role as an advocate for Damien and as a mediator between him and any service provider would be difficult and, at least initially, time consuming; she had already found that he was demanding and regularly in contact. She assessed her likely involvement in two phases. The first, initial, period concerned setting up and lasted for 6 months. She allows 15 hours for input into risk assessment and case management, with fortnightly visits of 2 hours and a contingency which, for the TRU, she assessed at 24 hours and for any BIRT placement (given that Mr Tinsley would be antagonistic to that concept) at 45 hours. The second phase, ongoing, reduced her visits to monthly but was claimed at 4 hours per month (reduced from her proof from 6 hours) with a contingency of 15 hours. Her claimed hourly rate is £70 with travelling time and expenses added. This was on the basis of a trip to the TRU; if Mr Tinsley is at Redford Court in Liverpool, this is very much closer to her Birkenhead base and travelling will be far less onerous.

Mrs Bingham agreed that Mr Tinsley would be oppositional and rigid (likely to cause what she accepted were horrendous problems) and that a case manager would have to be an advocate. She did not, however, believe that this would involve mediation with the service provider: dispute resolution, dealing with complaint and life skills would be an inherent part of any programme and if the case manager became involved, Mr Tinsley would only try to manipulate. There would have to be a well defined policy as to the line beyond which the case manager needed to be involved. As a result, whereas she accepted the original claim for the first six months (with a contingency of 24 hours rather than the increased figure of 45 hours) she believed that it was only reasonable to allow reviews in the first year at 6 weeks, 3 months and quarterly thereafter with 10 hours contingency. She assessed the hourly rate at £65.

There is no doubt that the next six months are going to be difficult as Mr Tinsley is involved in the consequences of the end of this litigation and adjusts to the idea of a new regime (with the inevitable lengthy discussions which that will involve). That will require travel to Manchester (where Mr Tinsley will presumably remain until he is assessed and a new placement organised). The Defendant concedes £5,270 for this period i.e. 15 hours input into risk management, fortnightly visits of 2 hours and 24 hours contingency; this involves Mrs Dean’s charge out rate. I add to that a further six hours on the basis that the first couple of visits could last very much longer. Thus for that period, I allow £5,690.

As for the ongoing position, I agree with Mrs Bingham that it will be important that the case manager does not get involved too readily in issues between Mr Tinsley and his service provider: if she does, I have no doubt that Mr Tinsley will only too readily manipulate the one against the other. On the other hand, I do not consider that monthly visits will necessarily create that risk and I do foresee Mrs Dean being involved negotiating on Damien’s behalf for a number of different services. As to the time to be taken, I see no reason why the visits should be longer than in the first period: two hours should be sufficient with a contingency of 15 hours per annum. At some times, that may be insufficient; after everything has settled down, as I believe ultimately is likely, it will be unnecessary. This amounts to £2,730 per annum.

Given the proximity of Mrs Dean’s office to Redford Court (through the Mersey Tunnel) and the fact that Mrs Dean made it clear that she had another client at Redford Court (and thus could combine visits), I reduce the travelling expenses to 30 minutes and 10 miles but allow some additional travel time and expense to deal with the contingent visits. In the circumstances, I allow £300 per annum. This puts the total claim for continuing cost for all but the first six months at £3,030 per annum. On a multiplier of 22.42 (roughly 22.92 less six months), this amounts to £67,933. Added to the first six months of £5,690 makes this head of damage £73,623.

Between 1992 and 1998 it is common ground that Mr Tinsley was not in paid employment. He had trained as a chef but did not manage to sustain a job for any length of time. As I have already noted, he had a severe alcohol dependence and had misused drugs although for 13 months prior to the accident itself he had been alcohol and drug free and had enrolled at an art college; he was to move college in September 1998 for a course the length of which is not apparent from the papers.

A claim is made for loss of earning capacity on the basis of employment earning approximately £10,000-£14,500 net per annum said to be the average net earnings of general labourers on the one hand and chefs on the other. It is argued that had he secured and maintained full time work over the period in excess of six years following the accident, earnings would have been in the bracket of £60,000-£80,000. Reflecting the possibility that he would have been out of work, a claim is made for £30,000. The Defendant, on the other hand, argues no earnings figures of any sort have been produced, that he was about to start a course and that his employment record does not support any claim of any sort.

I start with the agreement that Mr Tinsley’s pre-accident condition was such that, irrespective of the accident, he would have spent some 50% of his time available for employment evidence. Dr Scheepers and Dr Huddy put it (in relation to his mental health problems and not discussing difficulties he might have had obtaining employment) that he would have been expected to be in employment for at least 50% of the time. Dr Johns spoke of episodic returns to alcohol and also expressed the view that he would have been available to work about 50% of the time.

On top of that, there are the difficulties that Mr Tinsley would have faced in obtaining employment with a history of alcohol and mental health problems. Ignoring the fact that while he was on a college course (the duration of which I am not told), he would not have been available for paid employment and assuming that he was fit for work, given his employment record, it is by no means clear that he would have found a job.

Nevertheless, notwithstanding the six years prior to the accident, I do not believe that it is fair to say that Mr Tinsley has not proved he would ever have worked: I am satisfied on the balance of probabilities that he would have done. His commitment over the 13 months that he was alcohol free and attending a course (even with some time keeping problems) is not without significance. Doing the best that I can, I would discount the period up to the trial to allow for the course (which he may or may not have finished) discount the balance by 50% for likely ongoing mental health problems and discount that figure by a further 50% to deal with problems obtaining and retaining the commitment to work. Using the base net figure of £10,000 (somewhat higher than the minimum wage), I am prepared to award £12,500 for past loss of earning capacity. Considering this sum in the round, it represents low grade earnings for not a very long period of time: that does not appear unreasonable.

As to the future, the problems are exactly the same. Mr Hunter claims an increased multiplicand of £14,000 - £15,000 per annum (averaging £14,500) using the earnings of a chef, labourer or, alternatively, porter (at £12,000 per annum). A multiplier of 20 is claimed discounted to 10 to reflect the agreement of the doctors as to working capacity leading to a figure of £145,000. On any showing, it must also be discounted for the difficulties that Mr Tinsley would have faced on the labour market: Mr Purchas argues that, adopting Mr Hunter’s approach (but without challenging the justifiability of 20 as a starting point), it should be halved again to 5.

I accept Mr Purchas’ submission that, at best, Mr Tinsley would have been able to obtain and retain only low paid casual work of a comparatively menial type. Had he chosen to return to being a chef, disintegration as a consequence of relapse into over indulgence in readily available alcohol, would have been almost inevitable. I increase the multiplicand to £11,000 but no further. In addition, from that multiplicand, I deduct £6,500 reflecting accommodation, food and ancillary costs which would otherwise have had to be paid from these earnings but which are included in the fees payable to Redford Court (and thus reflected already in an award of damages). Using a multiplicand of 5, the future loss of earnings claim amounts to £22,500.

£750 is agreed in relation to a number of minor items but a claim for £6,910 remains in respect of what is described in Mr Tinsley’s Schedule as the increased cost of a reliable car. Particulars are provided to the effect that the purchase (by Mr Tinsley’s mother) was necessary in order to visit; an invoice is provided in the sum of £8,260 in her name. I repeat that there is no statement from Mrs Tinsley supporting this claim and, as Mr Purchas points out, no explanation whether she already owned a car and when she would have purchased another car in any event. I agree that this claim is simply unproved.

In Mr Tinsley’s final Schedule of Loss, based on the evidence of Dr Scheepers, there is a claim for in patient psychiatric care (which has been considered in the context of future care) together (over the course of each year) with psychiatric review (6 hours at £105 per hour), neuropsychological review (£500) and other medical consultancy (say £1,000). In the final schedule, that has been replaced by expressed reliance upon Dr Johns’ evidence. In examination in chief, he agreed that regular review with neuropsychology and neuropsychiatry was in order; he suggested 3 hour quarterly reviews, that is 24 hours per annum at £105 per hour.

Mrs Thompson made it clear that the support of a psychologist is provided at Redford Court. She said that psychiatric support was available through the NHS and, in addition, there was a budget for psychiatry available at no extra cost (although she added that some clients accessed private psychiatric services). Mr Purchas relies on this evidence and argues that Dr John’s recommendation is, in effect, provided.

It is clear that Dr Johns was well aware of the provision at Redford Court. In his joint statement (compiled with Dr Powell and Mrs Bingham) he records that Dr Freeland from the York BIRT attends regularly and that there is a full time clinical psychologist and an assistant psychologist: there is no mention of neuropsychology (although a neuropsychiatrist is available to assess patients at an outpatient clinic).

The proposal at the TRU included a specific additional allowance for clinical neuropsychological and neuropsychiatric services. This was claimed in addition to Dr Scheepers’ recommendations which were included in the Schedule of Loss. In the light of the clear evidence of Dr Johns, it seems to me entirely reasonable to allow a claim based on his assessment. This comes to £2,520 per annum.

There is also a claim of £500 per annum for annual neurological review in order to monitor Mr Tinsley’s epilepsy. At present, it is not controlled by medication but Dr Scheepers saw no reason why it should not be and, on the balance of probability (70% being controlled) it will be. Nevertheless, there is a risk. I would allow 4 hours (each at £105) in the first year, in the anticipation that the epilepsy will then be controlled and 2 hours per annum thereafter to monitor or review. In the long term, this might be too much, but given that I have allowed, at least in part, within the reduced life expectancy for some risk arising from epilepsy, it seems only fair to make this provision.

In all the circumstances of this case and in the light of the potential difficulties which Mr Tinsley is likely to cause, I do not believe that it is appropriate to conclude that these services will be accessed through the NHS. The upshot, therefore, is that I make an annual award of £2,730 for the multiplier of 22.92 (£62,572) to which I add an additional £210 for the first year’s additional neurological investigation making £62,782 in all.

A substantial claim amounting to £161,000 is no longer pursued. Rather, Mr Hunter now accepts that Mr Tinsley will not need to maintain a car although he will incur expense in transporting himself and his carers about. It is put at £50 per week. Mr Purchas relies on Mrs Bingham’s evidence that it is usual for the support worker to use his own car for some outings and to claim mileage. She observes that this would be a reasonable way forward given that a car would only be used once a week. In the circumstances, Mr Purchas allows £15,000 for future travel costs.

Speaking for myself, I am by no means clear that a car would only be required once a week. Further, £15,000 amounts only to just over £12.50 a week which, if the appropriate mileage allowance is 50 p/mile (which is the sum Mrs Bingham has allowed in relation to a case manager, no other figure being provided in the papers), it amounts to no more than 25 miles a week and is hardly sufficient for any life enriching trips. I appreciate that many trips will be within a comparatively close radius of Liverpool but, doing the best that I can, I would allow £2,000 per annum for this claim. This amounts to £45,840 in all.

Originally, the sum of £211,200 was claimed under this heading to reflect Mr Tinsley’s need for legal advice and future representation before a Mental Health Review Tribunal. Mr Hunter has now recast the claim as a contingency of £1,000 per annum on the basis that he is likely to require legal advice and assistance in a variety of situations. By way of example, he suggests that the possibility of his using violence may result in his placement being threatened and he may require advice if subject to further compulsory detention.

Mr Purchas challenges this head of claim in its totality. He argues that in relation to compulsory detention, it must be presumed that those concerned with the process will discharge their duties; the Defendant cannot be held responsible for contingencies that are contrary to that principle. It can also be argued that the case manager is in a position to assist in relation to problems with his placement; that, after all, is one of the specific purposes for which she is available.

Mr Tinsley will have access to independent psychiatric advice should he again be compulsorily detained: that is one of the benefits of the reviews for which I have made an award. In relation to legal advice, Regulation 3(1)(e) of the Community Legal Service (Financial) Regulations 2000 provides that legal representation before a Mental Health Review Tribunal is available without reference to the client’s financial resources. Mr Hunter argues that such provision will be for solicitor only and he may benefit from the advice of counsel (as he did when he obtained his discharge in 2003). To my knowledge, however, there are many solicitors with considerable specialist knowledge and experience in this field and even if I considered that this head of claim was not too remote (as to which I make no specific finding), I do not believe that Mr Tinsley’s reasonable needs would require the instruction of counsel. I make no award under this head.

This claim is now agreed in the sum of £4,080 per annum reflecting an additional cost of £2,000 per annum to take support carers on holiday and £40 per week to provide social outing costs for carers. Applying the multiplier of 22.92 it amounts to £93,514.

This is one of those heads of claim, both as to past and future claims, which were agreed during the course of the hearing subject, in relation to future costs, to the decision of the Court as to the appropriate multiplier. In the circumstances, and continuing to round up or down to the nearest pound, I award £2,675 by way of past costs, one off costs of £29,531 and recurring costs of £2,629.31 on a multiplier of 22.92 which is £60,264 by way of costs to be incurred in the future. This future award comes to £89,795.

Excluding any interest (which remains the subject of some dispute), the full value of this claim is as follows:

Mr Tinsley is, of course, only entitled to recover 90% of this sum. The result is that exclusive of interest, the award (as always, to the nearest pound) amounts to £3,127,205.

It is only right that I add two further comments. The first is that I have attempted to assess Mr Tinsley’s reasonable needs. My judgment is not, of course, prescriptive of how his future care is organised. I only observe that I have little doubt that the ‘own accommodation’ model will very soon collapse for the reasons that I have sought to give so that very careful thought ought to be given (even in an attempt to satisfy Mr Tinsley’s determined wish) before embarking on that course. In whatever he does, however, I wish him the very best of luck.

The second comment is to express my thanks to Mr Hunter, Mr Purchas, their juniors and solicitors who have worked under very great pressure not only to present this case in the eight days that it took to argue but also to ensure that I had the benefit of written closing submissions without which my task would have been very much more difficult.