The Judgment of Mr Justice Ritchie in the recent case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) provides an important reminder to all litigation solicitors that any recommendation or referral to a professional deputy should be to a solicitor or legal executive who has the necessary experience in dealing with complex personal injury settlements. Similarly, Mr Justice Ritchie’s judgement highlights the need for deputies to consider their experience and abilities to manage the specific matter and redirect the client to a specialist solicitor within the field if necessary.
A claim was brought on behalf of a young girl, aged 8 years and 4 months, by the Claimant’s mother and Litigation Friend. The Defendant failed to prevent the Claimant suffering severe chronic partial hypoxic ischaemia before and during her birth, which caused Cerebral Palsy. Liability was admitted in full by the Defendant on the 28th of May 2019.
Background
The Claimant has significant physical disabilities. She suffers severe spastic quadriplegia; she is PEG fed and suffers daily epileptic seizures. The Claimant needs 2:1 care at all times when she is awake, her care involves all of her activities of daily living. At the time of settlement, the Claimant had ten directly employed support workers which inevitably requires significant management by her case manager and professional deputy.
As a result of the negligence, the Claimant’s brain has been very severely damaged. The evidence within the claim assessed the Claimant’s cognition to be functioning at an age equivalent of between 6 and 18 months.
It was reported that it was possible to draw inferences from the Claimant’s physical and verbal reactions. This evidence would be considered a very helpful insight for the deputy when attempting to ascertain her best interests and involve her in decision making processes. Deputies that specialise in clients who have, or are pursuing a personal injury claim, will be aware of the importance of reviewing the evidence obtained within the claim. As highlighted below, Mr Justice Ritchie was critical of the appointed deputy’s limited review of the evidence prior to and during the Hearing.
Following an admission of liability and an initial interim payment, a professional deputy was appointed, and a case manager was sourced.
Mr Justice Ritchie’s criticisms of the deputy
Mr Justice Ritchie is critical within his judgement of the choice of deputy for the Claimant. Concern is documented within the judgement as to the deputy’s initial appointment of a case manager who lacked the required level of experience and qualification. In addition, the Claimant’s care package was significant, and questions were raised regarding the choice of agency instructed, the rationale behind the decision and the length of time the service was necessary for the client.
The Claimant’s deputy provided evidence in chief, in which he asserted that it was very difficult to find care during COVID and so he agreed to pay for Thornbury Nursing Services at a premium rate. It was recorded that the deputy had commissioned a care package which cost £360,000 per annum. However, the Local Authority funding was providing direct payments of £29,000 per annum.
The deputy was unable to explain the basis on which he had made a best interest decision to commission the care package. Mr Justice Ritchie summarised his view of the evidence provided by the deputy in cross examination. Reporting that the deputies’ evidence was:
“vague and it was quite clear from many of his answers that he had not read into the paperwork in any useful way so quite a number of his answers involved him saying that he did not know and would have to re-read the files.”
During cross examination, the deputy was unable to provide a comprehensive account of the value of the Claimant’s care during the deputyship. He had failed to review the Claimant’s care expert report and he was not able to assist on the decisions made in respect of the change in care provision and case manager, which took place during his appointment.
Mr Justice Ritchie commented that the deputy’s evidence was of little assistance to the Court and stated that he was not fully prepared for his own evidence. He went further stating that:
“he was a deputy for only three or four active cases and had never previously been a deputy for a catastrophic case of this size. Most of his work involved wills and probate and trusts. He had never handled a CP case before but he asserted that he thought that he was an appropriate deputy for the Claimant.”
In addition, Mr Justice Ritchie concluded that he had:
“reservations about Claimant solicitor firms appointing their own staff in maximum severity cases to act as Court deputies where the staff member does not have any experience of catastrophic injury cases.”
Mr Justice Ritchie was of the opinion that the deputy lacked the required level of experience for the role that he accepted.
The need for a specialist appointment
The administration of a deputyship is specialist work, particularly in cases involving a brain injury survivor and a large compensation award.
The deputy would ordinarily need to commission and oversee the work of a case manager, a multi-disciplinary team of therapists and support workers.
Where clients have ongoing personal injury claims, it is vital that the deputy is communicating with the litigation solicitor to ensure that any interim payment received is used for the purposes that they are awarded, for example, for care, therapies and equipment. The deputy will need to agree budgets with the litigation solicitor and provide past schedules and evidence of expenditure to help support the claim.
The deputy will need specialist expertise and experience regarding the following areas:
- welfare benefits;
- statutory care services;
- gratuitous care payments;
- the direct employment of support workers and CQC compliance;
- relevant tax issues;
- the Motability Scheme
- property adaptation projects;
- the SCCO assessment process;
- arranging specialist insurance and ensuring compliance with the Insurance Distribution Directive;
- further applications to the Court of Protection to seek additional authority as required by the ACC judgment;
- SRA compliance regarding the administration of an account held in a client’s name (e.g., the deputyship bank account); and
- budgeting and ensuring long term sustainability.
The above is a non-exhaustive list. In order to ensure that costs are reasonable and proportionate, the appointed deputy will need support from specialist deputyship paralegals who can assist with much of the ongoing administration.
In addition, one of the important decisions to be made by the deputy will be the long-term investment of the client’s compensation award. This will require enhanced due diligence, ideally with access to data regarding the past performance of specialist Independent Financial Advisors who act exclusively for protected parties who have received large compensation awards.
The SRA Code of Conduct
Professional Deputies also need to consider the SRA code of conduct when accepting instructions. If it is deemed that you do not have the necessary professional skills, or the deputy is not keeping up with the relevant law then there is the possibility of breaching the following codes:
Paragraph 3.3
“You ensure that the service you provide to clients is competent and delivered in a timely manner.”
Paragraph 3.4
“You maintain your competence to carry out your role and keep your professional knowledge and skills up to date.”
Paragraph 3.5
“You consider and take account of your client’s attributes, needs and circumstances.”
Paragraph 3.6
“You ensure that the individuals you manage are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.”
In this case, the court had clear reservations of the experience the professional deputy had in supporting the Claimant who suffered a catastrophic injury. Mr Justice Ritchie reminded professional deputies of the importance of being satisfied that they have the requisite knowledge and skills to be appointed as a deputy.
Hugh James act for just under 300 deputyship clients who have received large compensation awards. We have, on occasion, received a referral following the appointment of a previous deputy where they do not have the necessary experience and expertise to manage a case. Unfortunately, this can have a significant financial impact on a client who has been awarded compensation to ensure that they receive the necessary care and equipment for their lifetime. If a proposed deputy’s expertise and experience is in doubt, then the client’s best interests need to be considered and an alternative deputy should be located to protect the client, the proposed deputy, and its firm.
