A v The Archbishop of Birmingham [2005] EWHC 1361 (QB)

Case No HQ 03X 02280

[2005] EWHC 1361 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30 th June 2005

Before

MR JUSTICE CHRISTOPHER CLARKE

Between

AClaimant

The Archbishop of BirminghamDefendants

Robert Seabrook QC and Justin Levinson (instructed by Clifton Ingram) for Claimant

John Ross QC and Simon Trigger (instructed by Beachcroft Wansbroughs) for Defendants

Hearing Hearing dates: 15 th to 23 rd April and 15 th May 2005

Judgment

[1]“A” was born on 28th May 1970 and is now 35. Between about 1977 and 1988, i.e. between the ages of 7 and 18, he was sexually abused by a Catholic Priest – Father Christopher Clonan. That abuse was committed over a 10-year period, with a break when A was 16 and Fr Clonan was not in Coventry. It was regular – between one and three times a week – and progressive. It began with Fr Clonan putting his hands in A’s pockets and fondling his penis; it progressed to mutual masturbation and, by the time A was 12 or 13, he was being buggered and obliged to perform oral sex. The abuse went undetected for so long because, initially, A did not comprehend what was going on, and latterly was too afraid to speak, thinking that he would not be believed, as Fr Clonan told him would be the case. The defendants in this action have admitted their legal liability for failing to prevent these activities; judgment on liability was entered on 8th October 2004 and it is now for me to assess damages. The background

[2]A’s family were and are devout Roman Catholics. He is the second youngest of 7 children. The family were parishioners of the Church of Christ the King in Westhill Road, Coundon, Coventry. His parents attended services daily, the whole family at least weekly. Fr Clonan came to the Church as an Assistant Priest in 1972. He came from a wealthy background; had property in Ireland; and appeared to be a breath of fresh air. He was a regular visitor to the home and officiated at weddings and christenings. He was trusted and admired. The abuse was the grossest breach of the trust that A and his family placed in him. A attended schools linked to the Church -Christ the King Junior School, where his mother had once taught, and thereafter Cardinal Newman Secondary school, of which Fr Clonan was a governor. From about the age of 10 or 11 A’s behaviour deteriorated year by year, as did his achievement. I accept Dr Benians’ evidence that his deterioration in behaviour was substantially attributable to Fr Clonan’s abuse.

[3]A told no one of the abuse until 1992, in circumstances to which I shall refer. Thereafter his life fell apart. He has never been the same again; and has never regained the same enthusiasm for life that he once had. He became seriously ill in mind and has since then been receiving treatment for his mental illness. The revelation of the abuse had severe consequences for his family. After they had spoken out against Fr Clonan the atmosphere in the community was such that his parents felt that they had to move from Coventry to Northern Ireland. Later on A followed them there, and, since 2000, he has lived in supported accommodation in Shiels Court, Ballymoney, County Antrim. This is a home run by the Northern Ireland Association for Mental Health (“NIAMH”), a charity. He is currently reviewed regularly in the Psychiatric Out Patients Department of the local hospital and by a Community Psychiatric Nurse. Fr Clonan went to Ireland and then to Australia, from which he appears to have been expelled. He was never prosecuted and is now believed to be dead. At some date prior to the 1st March 2005, A’s sister Eileen (“Eileen”) was appointed by the Court of Protection as a Receiver for A. The issues

[4]The issues that I have to determine include the following heads of damage:(a) General damages for pain and suffering;

(b) A’ s past loss of earnings;

(d) Future accommodation and support costs;

(e) A’s loss of means tested benefits;

(f) Past care services provided by family members;

(g) Future care services to be provided by the family.

(h) Receivership Costs;

(i) Interest. The medical issues

[5]It is common ground between the parties that A suffers from a serious and debilitating mental condition, which is attributable to the sexual abuse that he suffered from Fr Clonan. It is also common ground that part of that condition is to be classified as post traumatic stress disorder (“PTSD”). The claimant’s medical evidence is that he also suffers from schizophrenia. It is on that basis that he is currently being treated. The defendants’ medical evidence is that he is not suffering from schizophrenia but from a complex form of PTSD and a personality disorder together with, on occasion, acute polymorphic psychotic disorder; and that, if he is suffering from schizophrenia, it was not caused by the sexual abuse. Since it is accepted that the mental illness from which A suffers is the product of the abuse the significance of the dispute lies predominantly in its impact on the prognosis for A’s future. General damages

[6]The parties have agreed the sum of £50,000 as the appropriate figure for general damages, and, if and insofar as my approval is needed for that agreement, I give it. It seems to me to be in line with the amount awarded in Coxon v Flintshire County Council

(2000) EWCA Civ 302

and approved by the Court of Appeal. Past loss of earnings – the evidence

[7]When A was in the fourth year at school he had a Saturday job at a local hairdresser. In the fifth year, Fr Clonan arranged with the school staff for him to work at the hairdressers for 3 days a week during school hours, so that he only went to school on Mondays and Fridays. When he left school at 16, without educational qualifications, he started to work full time at the hairdressers and did so for about 13 months. He then worked at a glass factory in Coventry called Staybrite Windows. When he had been there only a couple of weeks, he suffered an injury to his knee and was on sickness benefit until the Spring of 1988. He then took part time employment with Henderson Diamond Tool Company and was with them for about six months. He then joined Plumb Contracts Ltd (renamed in October 1991 Plumb Interior Contracting Services Ltd) towards the end of 1988 and began to learn how to be a fibrous plasterer. This is a skilled occupation, more so than that of a solid plasterer, a job with which many fibrous plasterers start. Within the description of “fibrous plasterer”, there is a range of skills from the relatively simple task of filling moulds, or fixing them, to that of making moulds. Some fibrous plasterwork is intricate ornamental work, such as the creation of ceiling roses and very detailed cornices and covings for churches and buildings of note. Plumbs were engaged in the full range of work. The group of which Plumbs was part was large.

[8]Some fully skilled ornamental plasterers can earn very good money. When he was working at Plumbs A met Pat Doherty (“Pat”), who was a highly skilled plasterer and mould maker, but self employed. Pat Doherty worked at Plumbs in 1989 and 1990, left them to work on a hotel in London, and then came back. When he did so (between February and August 1991), he lived with A. He took home £ 700 to £ 1,000 a week. His evidence was that A enjoyed the work, was extremely willing and wanted to learn, picked the work up quickly, and was good at it; and that by 1991 he was a capable fibrous plasterer. Pat saw him in the workshop, where he learnt how to fill moulds. It seems to me that the best description of A’s activity, which is consistent with Pat’s evidence, is that given by A himself in his application for incapacity benefit in July 2000 (“working out of a workshop and output of cargo to placements and general labour”) and in June 2000 (“general labour and fitting’s (sic) of casts and workshop duties”). Eileen said, and I accept, he was in the workshop at first (making covings and cornices) and then went to different sites and worked at different places, including work at night and at places like the Merryhill centre. He may well have gone further afield as well. But the work that he did was no more complex than filling moulds and fitting pre-formed plasterwork on site.

[9]The evidence of A’s family and former girlfriend – Georgina Kell – is that A was working at Plumbs in 1991 and 1992. According to Miss Kell their relationship began some time in the latter part of 1991 and continued into the beginning of 1992. Shortly after it started they began to live together at her house until the relationship ended a few months into 1992. It was still going when, at Christmas 1991, she travelled to Bahrain to visit her father. Her evidence was that until the end of the relationship A was working for Plumbs. She drove him to work. The work that he was doing included hand casting. She described his work as a cross between a plasterer and a carpenter: involving mitring, fixing and making good. According to Eileen and A’s parents, when A began to work at Plumbs he earned about £ 140 a week net, but, after he had learned his trade, he was taking home about £350 a week. Georgina recalled that he was earning more than she was, and she earned £14,000 gross (about £269 per week). According to Eileen’s evidence A left Plumbs of his own accord in June 1992, just after her own 21st birthday, in order to visit Pat in Wales, where Pat had set up his own workshop, at a time when he was obviously not himself (he had given her a black eye before he left for Wales on Saturday 27th June because she had said that he could not take her bag). In July A suffered the breakdown to which I shall hereafter refer.

[10]The Inland Revenue records contain details of A’s declared earnings and national insurance contributions over the years. According to those records A’ employment and paid earnings for the tax years from 1987/8 onwards were as follows: Tax Year Employer Earnings Weeks off 1987/88 Henderson Diamond Tool Company £ 207 Unclear 1988/89 Henderson Diamond Tool Company Plumb Contracts Limited (“Plumbs”) £ 1,698

£ 3,826

£ 5,524 Unclear 1989/90 Plumbs £ 7,907 9 1990/91 Plumbs £ 8,179 13 1991/92 Plumbs £ 3,298 26 The figures in the last column are the figures of contribution credits which are recorded during the relevant year and reflect the credits give when the person concerned is not in paid work (because of unemployment or sickness or unpaid holiday) and therefore unable to contribute himself. The figure of 13 for 1990/1 itself ties in with the fact(a) that in a form entitled “Receipt for Holiday Card and Employment Documents” (“the receipt”) A’s employment is described as commencing on 9th July 1990; and

(b) that in January 1993, when applying for invalidity benefit A declared that in 1990/1 he had been employed by Plumbs from 9th July 1990 to 19th July 1991 (2/485-6).

[11]The receipt appears to indicate that A’s employment with Plumbs ended no later than 15th August 1991 the date upon which a wages clerk signed it and recorded that the documents referred to in the form had been sent by registered post to A. The receipt records a commencement date of employment of 9th July 1990 but no entry has been put in the box in which the termination date is to be entered. But one part of the document reads as follows: INCOME TAX DOCUMENTS P.45 Parts 2 and 3 handed over Yes/No* On the form the word “No” has been crossed out in manuscript. This suggests that by August 1991 A’s employment with Plumbs had come to an end and he had been sent his P 45 form in consequence.

[12]The documentation from the DHSS supports that conclusion. Thus a Linking Information Document of 16th July 1992 (2/480 References like these are to the trial bundles. ) indicates that a Period of Interrupted Employment (“PIE”) began on 14th October 1991, which appears to tie in with the receipt. If allowance is made for what appears to be the 13 days of accumulated holiday pay referred to on the receipt and a 6 weeks eligibility period following any termination of employment with Plumb’s, that would take one close to the date of 15th August 1991 when A was sent his cards. What is not clear from the form is whether unemployment benefit was paid from 14th October 1991 onwards (although it seems to me likely that that is so). But the form clearly indicates clearly that such benefit was being claimed on 22nd June 1992, as does the document at 2/474.

[13]A conclusion that A’s employment ended in the Summer of 1991 would be consistent with other evidence of which a documentary record exists including the following:(a) when examined at the Caledon Unit at Walsgrave Hospital on 12th July 1992 A is recorded as having worked “as a trainee hairdresser for 3 ½ years, then as a general labourer on a building site, then as a plasterer for 3 years. No steady work since then” [3/923]. On the next day he is recorded as saying that the last time he worked was for about 2-3 weeks. He is also recorded as having travelled abroad in France and Germany [4/1074 & 1076] in what appears to have been the recent past. That does not appear to me consistent with his having had a job until he decided to go to Wales at the end of June 1992.

(b) in her statement to the police of 12th September 1992 Eileen stated that “over the past year [A] was regularly on the move, doing all sorts, a lot of travelling etc.” She explained this in evidence as a reference to A’s going back and forth to Georgina and down to London, but I find that a strange use of language. On 21st September 1992 A is recorded as telling the Senior House Officer (“SHO”) who examined him at Walsgrave that he had been unemployed for the last year and prior to that was a painter and decorator (4/1079 and 1148);

(d) on 7th August 1994 he is recorded as saying on admission to Walsgrave, that his last job was “three years ago” (4/1091);

(e) on examination at the Out Patients’ clinic of the Ross Thomson Unit in December 1999 (4/1312), A is recorded as saying that he had last worked in 1991;

(f) a claim by A for incapacity benefit signed by him on 13th June 2000 (2/589 – 607) in which he stated that the last day that he had worked for an employer was 30th June 1991 (although he also stated that his last date of employment with Plumbs was 15th May 1991);

(g) a claim by A for sickness benefit signed by him in June 2000 in which he said that the last day that he had worked for an employer or as a self employed person was June 1991 and that he had not worked for any employer during the 8 weeks preceding the date when he became sick, which was put as 6th July 1992; (2/490-4)

(h) a claim by A for incapacity Benefit signed by him on 9th July 2000 in which he recorded that his work with Plumbs ended at an unspecified date in 1991; (2/570-588)

(i) the Social Circumstances Report relating to his admission to the Ross Thomson unit in August 2000 records him as having been unemployed since 1991 (6/1724).

(j) A’s earning at Plumbs were paid automatically into the Coventry Building Society. These statements show no earnings for the period July 1991 to April 1992.

(k) I note that on 15th February 2001 A, who was with Eileen, told Dr Benians that “he had started many jobs but had been unable to keep them”. (1/65). This does not seem to me consistent with an uninterrupted employment at Plumbs from 1988 to 1992. Whilst I would not place great store on this if it stood alone, it seems to me confirmatory of other evidence.

(l) there is no documentation before me that suggests that A left Plumbs at the end of June 1992. I note, however, that in December 1997 A is recorded as telling the person who examined him at Walsgrave that his last job (unspecified) was in 1992 (4/1134).

[14]In the light of that material I am driven to the conclusion that A’s employment with Plumbs probably ended in about August 1991, that he was not employed by them, whether as a fibrous plasterer or otherwise, in 1992, and that those who, over a decade later, recall him as having been so, are mistaken in their recollection. It seems to me implausible that there should be so many pointers to that conclusion, many of them contemporaneous, if in truth A had remained employed by Plumbs until his collapse, and many of the documents are inexplicable if that is so. I do not ignore the fact that some of the forms to which I have referred were filled in by A when he was in the grip of mental illness. But my conclusion does not rest on his evidence alone; nor am I persuaded that his mental illness invalidates his statements as to when he ceased working for Plumbs.

[15]The documents appear to record:(i) A’s leaving the employ of Plumbs in 1991;

(ii) earning significantly less in 1991/2 than before; and

(iii) claiming unemployment benefit at least by June 1992; for all of which some explanation must be sought.

[16]I have considered the possibility that A became self-employed towards the end of 1991; and that thereafter he was paid as a self-employed worker either by Plumbs or, as was suggested by Miss Kell during the course of the trial, by self-employed plasterers working for Plumbs. There is however no direct evidence of such a change of status. If A had become a sub-contractor to someone who was engaged by Plumbs as a self-employed plasterer, I would expect there to have been some discussion about it with his family and girl friend, or, at least, that they would have known about it. Eileen’s recollection of A telling her that he remembered being paid in cash (paragraph 18 of her statement) is too vague to be of assistance. I note, also, that in the form that he signed on 9th July 2000 (2/572) A said “No” to the question whether he had worked as a self employed person in the 21 weeks before the period when his sickness began, that sickness being stated to date from 1992, and that the details that he gave of his self-employment were that it was as a “Hairdresser”. In the form he signed on 13th June 2000 (2/589) he answered “No” to the same question but gave no details of any self-employment at all. Further, this possibility does not reconcile with his claim to unemployment benefit; or the absence of any return to the Inland Revenue in respect of self-employed earnings.

[17]A has not been called to give evidence nor do I have a statement from him dealing with his employment history or prospects (nor any evidence from anyone employed with him at Plumbs in 1992). I take fully into account the need not to exacerbate A’s mental illness by the strain of giving evidence. I am however unconvinced that it would not have been feasible for him to give evidence in any form bearing on the important questions of what work he was doing in 1992, what he was earning, what time he had had off, and why, and what his plans and aspirations were. Past Loss of earnings. The Defendants’ submissions

[18]The Defendants submit that, in those circumstances, the uncertainties as to what A would have earned from July 1992 until now are such that I should make a lump sum award of £50,000 calculated in the manner set out in Appendix 3 to their closing submissions (future appendix references are to the appendices to those submissions), which involves taking A’s average emoluments between 1989/90 and 1991/2, reducing for tax and NIC but allowing for annual increases of 3% together with further deductions and additions. I do not regard this as a fair method of proceeding primarily because I do not regard such a 3-year average as a suitable method of assessing A’s earning capacity from mid-1992 onwards.

[19]Alternatively they suggest that the appropriate figure from which to start is the £ 8,179 recorded income for 1991/2, during which A worked 39 weeks; increased to £8,424.37 for 1992/3, and then increased by 3% per annum to reflect general increases in wages ; and then reduced by 23% for tax and national insurance. From that they suggest that I should deduct £1,000 for the expenses of travelling to work; and a further 10% deduction to allow for the fact that A was not in continuous employment before July 1992. That produces a figure of some £72,000: see Appendix 4. At the highest they suggest that I should take the gross figure of £15,850 which Mr Challis, the expert called by them, said was the annual gross median earnings that A could expect to be earning as a fully qualified and experienced building craftsman in 2004 (£ 317 per week x 50). (The £317 figure was for a mate to a construction industry worker, which Mr Challis treated as equivalent to a plasterer’s labourer). The calculation in Appendix 5, using the interest rates chosen by the Claimants’ expert (as to which see below) would produce a net figure of £ 110,541 from which should be deducted the £1,000 per annum and 10% to which I have previously referred. The resultant figure is about £ 87,000. The claimant’s submissions

[20]On behalf of the claimant it is submitted that I should start by taking the median figure for a construction industry labourer for the years ending 31st July 1993 to 31st July 1997, assuming payment over 52 weeks. These figures do not differ very greatly from those in Appendix 4, if expressed in the amount of pay per week for a 52-week year, although the median figures are somewhat higher. The substantial difference arises from the fact that the defendants have taken a starting figure of £8,179 (increased for inflation for 1992/3) which represents gross wages paid in respect of 39 weeks and used that as the yearly figure. They have then deducted from the net figure £1,000 and 10%. Those representing the claimant have assumed that the median wage is paid over all 52 weeks and that there is to be no deduction of any kind for transport costs. Their calculations also assume that in the year ending 31st July 1998 A’s weekly gross wage increases from £ 258.30, the wage of a median earning labourer to £421.48. It is not suggested that I should find that this would have happened then; the figure was put forward as a “possible balanced approach to the whole of the evidence”.

[21]The figure of £421.48 and those for the succeeding years were derived from research carried out by Mrs Brading, the expert retained on behalf of the claimant, into the earnings of fibrous plasterers. She rang up a selection of fibrous plasterers nine of whom gave her, as she had asked, rates of payment per day current in 2004. These varied between £50 and £300. She took the average, which produced a gross figure of £645 per week and deduced the figures for the previous years by using the percentage increases year on year down to 2004 of the minimum rates laid down by the relevant National Joint Council for fibrous plasterers. My

Conclusions

[22]Given that A was not, as I find, in Plumb’s employment when he broke down in 1992, the assessment of what the next 13 years would have held is a matter of considerable difficulty. I do not find either set of submissions completely convincing. The defendants’ Appendix 4 calculation proceeds upon an assumption that A would only be paid on average for 39 weeks of each year; and that, in addition to the £ 1,000 reduction a further 10% is to be deducted on account of his non continuous employment record. That would imply that A was unpaid for something like 3-4 years out of the 12 years of the period. Their Appendix 5 calculation, when worked back to 1992, results in a figure for 50 weeks paid employment (£7,940) which is less that A in fact received in the tax year 1990/1 for 39 weeks paid work (£8,179). The claimants’ figures, on the other hand, assume that no periods are unpaid, although employment in the construction industry fell significantly in the period between 1990 and 1994, and that a very sizeable increase takes place by 1998. Further, given the very large range of the figures that Mrs Brading obtained I do not find the average a reliable figure by which to assess A’s past loss of earnings.

[23]Despite these difficulties I must seek to make a fair assessment of A’s loss of earnings on the basis of such evidence as I have. I begin by estimating what he is likely to have earned if he returned to his job as fibrous plasterer. As to that it seems to me that the most reliable guide is to take what he in fact earned in 1990/91. That was £ 8,179 for 39 weeks. I estimate that in 1992/3 that would have been of the order of £8,700. I am not convinced that in the period from July 1st 1992 to June 30th 1993 A would have worked for more than 39 weeks. (I take that as the base period because A broke down after going down to Wales at the very end of June). He had been off work. He may well not have returned to work (either through disinclination or difficulty in finding work) for a while, particularly when unemployment in the construction industry was at 18-19% in 1992-3, although fibrous plasterers were better placed than others in this respect and, broadly speaking, in demand. But, if in his right mind, he would, I believe, have returned to work in 1992 either to Plumbs or to some equivalent job. The impression that I have gained is that he was, essentially a worker, not a sloucher, and his family background supports that conclusion. I think it likely that his absence from continuous employment in late 1991 and early 1992 was, at least in part, attributable to the beginnings of the severe psychological illness that struck him fully in June 1992.

[24]I turn then to assess what A would have earned if he worked – paid full time – as a fibrous plasterer. This requires converting £ 8,700 into a 52-week year. £ 8,700 x 52/39 = £ 11,600. Thereafter I propose to take the percentage increases in the NJC minima for fibrous plasterers (Mrs Brading’s Appendix 5) as the most reliable guide to the amount by which these wages would increase from year to year. From that is to be deducted 23% (which I take as an acceptable average) for tax and national insurance contributions. The resulting figures are these: Year Gross figure % Yearly increase Net figure 1992/93 £ 8,700 £ 6,699 1993/94 £ 11,600 0 £ 8,932 1994/95 £ 11,883 2.44 £ 9,150 1995/96 £ 12,657 6.21 £ 9,746 1996/97 £13,026 2.92 £ 10,030 1997/98 £ 13,737 5.46 £ 10,577 1998/99 £ 15,643 13.87 £ 12,045 1999/2000 £ 17,207 10 £ 13,245 2000/01 £ 18,060 4.96 £ 13,906 2001/02 £ 19,056 5.51 £ 14,673 2002/03 £ 20,763 8.96 £ 15,986 2003/04 £ 21,764 4.82 £ 16,758 2004/05 £ 23,199 6.69 £ 17,863 £ 159,610 The resultant figure of £23,199 gross in 2004/5 is just over £1,000 per annum above the mean (£425.9 per week, £22,146 gross) and considerably above the median (£ 359.8 per week, £18,709 per annum) for plasterers, which will include solid and fibrous plasterers, in the Annual Survey of Hours and Earnings from the Office of National Statistics which Mrs Brading produced. It also puts a figure on A’s earnings that would place him within the range of earnings of his siblings, although I regard this as a comparison of limited confirmatory assistance. I recognize that these figures do not include an uplift to mark any increase beyond that needed to reflect the rise in rates generally. I have no direct evidence as to whether A could have expected such an increase, or what it would be. As will become apparent hereafter I propose to make some allowance for such an increase in the calculation of future loss.

[25]That calculation assumes that A would have been continuously in full time employment, earning at the same level as his job at Plumbs, whether at Plumbs or elsewhere, throughout this period. But, judged by his past record, and the inherent probabilities, I regard it as unlikely that he would have remained in employment at this level, paid for 52 weeks per year, throughout the period. Whilst I would expect him, whilst employed, to be paid for 52 weeks of the year, there would probably have been interruptions in his employment, some probably self-chosen. In my judgment the appropriate way to reflect that is to apply a discount of 10 %, producing a figure of £ 143,649, say £ 143,650.

[26]From that is to be deducted something in respect of transport costs. The figure of £1,000 seems to me too high. If Plumb’s plasterers were to go anywhere distant I would expect Plumbs to have provided transport; so the relevant cost is of getting to work in or around Coventry. I assess a fair figure to be £ 400 per annum, making the total deduction 13 x £400 = £ 5, 200. So the award in relation to past loss of earnings is £ 138,450. Loss of earning capacity

[27]The assessment of A’s loss of earning capacity is beset by similar difficulties. A had been in employment at the hairdressers, the glass factory, Henderson Diamond Tool and at Plumbs but that employment had not been continuous. He appears to have been re-engaged by Plumbs on 9th July 1990 having at some stage prior thereto ceased to be employed by them. He left Plumbs, as I find, in the late summer of 1991. The defendants contend that, in those circumstances, the correct approach is to determine a lump sum, which takes into account:(a) the unsettled nature of A’s employment record;

(b) the likelihood that if A had remained in employment as a plasterer or general labourer he would have been obliged to retire at a relatively early age either through an injury for which he would not have received compensation or because he could not continue in such a physically demanding job.

[28]Alternatively they contend that I should take the last figure for net earnings in the past loss of earnings calculation (“the last earnings figure”) and deduct from it 10% to reflect the prospects of periods of unemployment in an industry which is significantly affected by the economic cycle, and apply to it an appropriate multiplier, which they submit is the multiplier from the Ogden tables for loss of earnings to age 55: see Appendix 7 as amended. As a further alternative they submit that the highest way in which it could be put in favour of the claimant would be to take a figure of £350 per week The figure of £317 in paragraph 19 increased for inflation. (£17,500 per annum assuming a 50 working week year), making £ 13,475 net, less £1,000 for travel expenses. This they then multiply by 15.54, the Ogden table multiplier to a retirement age of 55, making £193,830 from which a further deduction would fall to be made to reflect periods of unemployment for whatever reason (want of work, lifestyle choice, or injury): Appendix 9.

[29]On behalf of the claimant it is contended that I should take the last earnings figure, which, it is submitted, is the much higher mean figure for fibrous plasterers produced by Mrs Brading’s research. But, as they contend, there is no reason to suppose that A would not have worked until at least 65. Accordingly A’s future loss of earnings should be taken by applying the appropriate multiplier for loss of earnings until 65 to that figure. Some allowance should then be made for pay increases to reflect the improved skills and experience that A would have attained over the course of his career. Conclusions (a). periods of unemployment either for want of work or because he chose to take time off work; (b). injury or incapacity not arising in circumstances where compensation would be payable; (c). increases in wages beyond those necessary to reflect inflation; (d). the possibility that, at some date after he reached the age of 55, he would cease to work in the construction industry and take some less well paid job.

[31]As to(a) the building trade is prone to recession (although fibrous plasterers are better placed to withstand it than others) and A’s employment history shows that, even when with Plumbs, he was not continuously employed. As to

(b) I do not regard the job of a fibrous plasterer as particularly likely to lead to injury or incapacity but it involves a considerable amount of physical movement and dexterity and is plainly riskier than the job of a clerical worker. As to

(c) I have practically no material upon which to assess the likelihood or amount of any merit increase other than the facts (i) that a trained and experienced plasterer is more valuable than one who is not, and (ii) there is a very considerable range in the possible earnings of a fibrous plasterer. As to

(d) the statistics shows a marked reduction in the numbers of males employed in manual employment in the construction industry who are over 55 compared with those in other age groups. But it does not follow that A would have ceased to earn at the same rate, since he might either have continued as a fibrous plasterer beyond 55, or changed to a supervisory or management job, or taken on some new employment comparably paid. Any decision as to how to resolve these imponderables, not all of which point in the same direction, is fraught with difficulty.

[32]I propose to resolve it in this way. The Ogden multiplier to 65 for a man aged 35 (using a 2.5% rate of return) is 20.57. Assuming, as I do, a medium level of economic activity, the reduction in the Ogden Tables for contingencies other than mortality for a man of 35 is that produced by multiplying by 0.96. The reduction in the figure of 0.96 to allow for the fact that A would have been in a more risky occupation than average (no more than 0.01) is practically matched by the increase for persons resident in the East Midlands, as A would have been (up to 0.01). I propose to take a multiplier of 19.5 which is somewhat less than 20.57 x 0.96. I do that because, as it seems to me, A was someone likely, even in later years, to take some time off as a matter of choice as to how he lived his life. I propose to use a multiplicand of £ 17,863 (see paragraph 24). I then propose to estimate that by the time he was 35 A would have received a 20% pay increase to reflect his experience as a fibrous plasterer, making £21,435 and by 45 a further 10%, making £ 23,579. To a considerable extent, these are figures “plucked from the air”. I recognise, also, that any increase for experience would probably be gradual rather than in an increment of that nature. I make this assessment because it seems to me that the probabilities are that A would have progressed as a fibrous plasterer (Pat described him as quick to learn and good at it, he comes from an industrious family, and even now he displays a wish to have a normal job, however unrealistic that may be) and that his skills would have been recognised. It may be that he would have progressed more than that but I regard that as speculative. To take two increments of that size is a rough and ready calculation, but the alternative to taking some such course is to assume that A would have remained throughout his working life at the same level of payment, general wage increase apart, which would in my view be wrong. The resultant calculation is, therefore, as follows: £ 21,435 x 8.86 Multiplier for a loss of 10 years Kemp & Kemp 36 -081 = £ 189,914 + £23,579 x 10.64 Balance of the 19.5 multiplier = £250,880 making £440,794. From that is to be deducted a sum in respect of travelling expenses of, say £ 400 x 19.5. = £ 7,800, making £ 432,994. Residual earning capacity – diagnosis and prognosis

[33]It is common ground that A suffers (but does not only suffer) from Post Traumatic Stress Disorder (“PTSD”). A considerable amount of the evidence given at the hearing was directed to the question as to whether the evidence supports a diagnosis of schizophrenia, on the one hand, or personality disorder with acute polymorphic psychotic disorder on the other. In order to understand the debate it is necessary to recount what befell A after he left for Wales in June 1992.

[34]On Sunday 5th July 1992 Pat Doherty telephoned Eileen to say that A had disclosed to him that he had been abused by Fr Clonan and that he was concerned about him. A had suffered a breakdown and was behaving very strangely including shovelling wet cement around the interior of Pat’s cottage. On the next day, A’s sister Helen went down to Wales and Eileen followed on the Wednesday. A was very confused and behaving strangely. On Thursday 9th July, they returned to Coventry with A, who continued to behave very strangely, displaying lots of excess energy. He was taken to the G P that day. On Saturday 11th July, he was taken to the surgery but ran out of it. On Sunday 12th, he was admitted, as an emergency referral by his GP, to the Walsgrave Hospital Psychiatric Unit where he stayed for four days. The GP who saw him recorded (3/898) “gross paranoia, feelings of conspiracy etc”. The notes of his admission (4/1068 and 3/922) record that some of his words and sentences were disjointed and incomplete, that he described himself as “like an animal sometimes”, that he had “feelings of people talking”, and “an almighty amount of energy”. His mental state was described as disinhibited and himself as having pressured speech and “? flight of ideas”. The impression of the admitting doctor was of [in descending order] “acute psychotic illness, mania, schizophrenia”. On 13th July 1992 he was recorded (4/1072) as feeling that something was taking him over and having a phobia that he had AIDS; his sisters reported that A felt that they had trapped him into hospital (4/1073).

[35]Georgina Kell’s evidence at trial revealed that A had previously told her about the abuse, when their relationship broke up. When he did so, as they were outside her parents’ house, he hit his head on the bonnet of a car and ran into a plate glass window. An ambulance was called and Eileen came round. She thought – mistakenly - that A’s behaviour was attributable to the ending of the of the relationship. 1992

[36]In September 1992 [3/926] A was readmitted to Walsgrave complaining of suicidal feelings. He was discharged after 9 days. He had stopped taking his medicine and had been taking cannabis and drinking heavily in the days prior to admission. A diagnosis was made of drug-induced psychosis. The likelihood is, as Dr Caplan suggested, that A’s feelings were a form of akathisia as a side effect of the haloperidol, an anti-psychotic which he was then being prescribed.

[37]In December 1992 Dr Villa, a consultant psychiatrist at the private Woodbourne Clinic recorded (4/156) that A had been admitted on 14th October 1992 with a clear hypomanic illness. On examination, he had pressure of thought and speech, a short concentration span, and a clearly elated mood, but there was no clear evidence of delusions or hallucinations. A was discharged on 20th November 1992, having had a few periods of arranged leave, with a prescription of lithium carbonate (a mood stabiliser) and chlorpromazine (an anti-psychotic/sedative). Dr Caplan’s evidence was that there cannot have been a diagnosis of schizophrenia because lithium would have been quite the wrong treatment.

[38]In the ensuing years A was sometimes treated at Walsgrave and sometimes at the Woodbourne, the expense of which was borne by the Church. His treatment and admission was usually to deal with some new crisis. 1993

[39]In January 1993 A took an overdose of drugs. He was admitted to hospital as an emergency on 3rd January (3/931 and 4/1086) and, by self-admission to the Woodbourne on the 4th - 5th January. He was much disturbed by remarks made by a priest which he interpreted as bolstering the power of the church as an institution; according to him the priest had refused to say, although he knew, where Fr Clonan was.

[40]On 13 September 1993 A was admitted to the Woodbourne Clinic again. He was described as aggressive and disinhibited and showing all the signs of hypomanic illness (4/1164). He had by now obtained an award from the Criminal Injuries Compensation Board of £12,500 much of which he expended on a van, sound equipment, clothes and other things. He had gone on a trip to Ireland and taken cannabis, and had a “wild” time which precipitated a relapse. He stayed in the clinic until 9th October when he was discharged on lithium treatment. 1994

[41]On 7th August 1994 A was referred to Walsgrave by his GP. In Out Patients differential diagnoses were made of(i) manic depressive psychosis (manic stage);

(ii) drug induced psychosis (he indicated he was spending £20 a week on cannabis); and

(iii) paranoid psychosis (4/1093). He was later admitted under the Mental Health Act having become violent and abusive (including towards his parents) and having been throwing things around. Before admission, he had been involved in driving at a very high speed and had been arrested and charged. Eileen’s description of his mental state was noted as “being paranoid, using words oddly, quick thinking, vulgar, hyperactive, oversensitive, agitated, loss insight”. He was discharged on about 22nd August, free of psychotic symptoms, on clopixol, a depot anti psychotic drug, but not lithium. He was assessed in the day-hospital a week later when the doctor felt that his thought was muddled and his mental state examination showed “restlessness and agitation with Paranoid ideation”. 1995

[42]In June 1995 Dr Villa reported that, although A had stopped taking medication he was coping reasonably well and was still living with his parents. In a letter to a GP in June 1995, Dr Villa recorded that:

“…during the long period spent in hospital he had considerable attention, not just from the point of view of medication, but he went through a very detailed and consistent behavioural programme to overcome the years of sexual abuse. Indeed [A] was very pleased with himself. However the question still remain whether his disturbed and paranoid behaviour is just a consequence of his disturbed childhood plus the years of medication or whether there is a more long-standing schizo-affective or manic depressive illness in the background”

. In other words he was struggling with the question whether A had some constitutional condition independent, at least to some extent, of the precipitant factor of abuse, or whether A’s presentation was simply a reflection of that abuse.

[43]Between 8th October and 16th November1995 A was admitted to the Woodbourne Clinic (3/942). Dr Villa noted that whilst there, he had become quite suspicious and paranoid towards everyone, was often aggressive and only with difficulty accepted treatment. Dr Villa recorded that, during his leave A had taken alcohol and, he was sure, cannabis as well. A had not continued to do any work with the therapist whom he had seen before (which Dr Villa thought was probably due to the high level of his paranoia) and was always expecting members of his family to support him unconditionally. He was prescribed lithium carbonate and depixol decanoate, the latter being a depot injection similar to clopixol. Dr Caplan viewed this combination as indicative of uncertainty as to the underlying cause. 1996

[44]On 5th February 1996 A was seen at Walsgrave Out Patients, where he reported having ideas of shooting his father. He reported beating his father up 4 days before and asked to be saved from harming him further. He had thought of hanging himself. He had been hearing the voice of his abuser saying, “I told you I was free”. Such 2nd person auditory hallucinations are, I accept, of limited diagnostic assistance, certainly as compared with those where two or more people talk of the patient in the third person which are first rank symptoms of schizophrenia. In the present context they are readily attributable, because of their content, to PTSD, The doctor who assessed him noted “paranoid” and “homicidal” ideas and assumed a drug induced paranoid state. He was admitted to the ward with a prescription which included chlorpromazine (another anti-psychotic)

[45]At some time in the 1990s A had a relationship with a girl called Emma, who had twin children. On 6th February 1996, whilst at Walsgrave, he is recorded as saying that he has found out that she was pregnant (4/1112). He is also reported to have split up with her on New Year’s Eve 1996 (4/1113). It is not clear whether A is, as he believes himself to be, the father of her twins. Whilst at Shiels Court he has talked of seeing Emma and the twins and of marrying her; but Eileen’s evidence, which I accept, is that he has not seen Emma for 9 -10 years and that his reference to having seen Emma and the twins when he came to Coventry in May 2004 is false. By 6th February, A appears to have improved. He was no longer suicidal, but low. He felt bright because his girlfriend was going to have twins. On the 6th February, he was seen using cannabis on the ward. When asked to allow a search he said that he wanted to leave the hospital. On 7th February, he was discharged with a prescription of lithium. This indicates, according to Dr Caplan, that those treating him now felt that he had either a manic or depressive mood disorder, probably the former, and not schizophrenia.

[46]On 11th April A came to Out Patients asking for assistance to come off an amphetamine habit of 14 grams per week (if his description was accurate this is a very large amount).

[47]In July Dr Villa recorded A as complaining of contradicting voices in his head, restlessness and agitation. It is not clear whether the voices were 2nd or 3rd person hallucinations. 1997

[48]On 18th February A was seen in Out Patients at Walsgrave when he complained of negative influences on his life, feeling low and being unable to concentrate. He was to be referred to the psychotherapy department for cognitive therapy. The diagnosis was of “personality difficulties”. A did not respond to correspondence from the department.

[49]On 3rd September 1997 (3/1138) A was seen at an Assessment Unit at Walsgrave, where he expressed himself as worried that evil forces were trying to hold him down mentally. These forces, which he had experienced for two months, constantly reminded him of, and blamed him for, the sexual abuse. He had by this stage stopped taking the depot injections of clopixol three months before, but was still taking lithium at night. He felt that the forces were planted in his mind from the underworld or the television set. He also felt that the forces were tricking him because a kettle was being switched on behind his back without his going anywhere near it and oil was put in his socks; and he was worried by shards of glass suddenly appearing on the floor long after he had cleared up the broken glass. He heard voices criticising him especially when he was doing something positive. Sometimes he felt that they were talking about him among themselves. He thought that evil forces were planting thoughts into his mind. But he realised that this was happening to him as a result of illness and his stopping the depot injections. Initially a diagnosis was made of personality difficulties and it was proposed that he be referred for psychotherapy. Later in the day, he was prescribed haloperidol. This produced a great improvement and A ceased taking the lithium which he thought had contributed to his problems. By 2nd October, however, A had become irritable, low in mood, agitated and was complaining of panic attacks. When taken by the Community Psychiatric Nurse to the Assessment Unit on that day he reported that the thoughts of the evil forces had recurred quite often and he was very anxious and agitated. The dose of haloperidol was increased and lithium was restarted. Dr Caplan’s view was that at this stage no one quite knew what was going on with A. 1998 Wales

[50]Thereafter A led an erratic existence. In November 1997, he moved to South Wales, where he was examined from time to time at the Wellfield Resource Centre in Carmarthen, or at GPs’ surgeries. In February 1998, Dr Evan Jones in Carmarthen had the impression that “the symptoms of psychotic illness are not far below the surface”. During the course of 1998, he was prescribed various different anti psychotic drugs such as risperidone, clopenthixol, and haloperidol, under a general diagnosis of Personality Difficulties. 1999

[51]Between 22nd July and 3rd August 1999 A was admitted to Cardigan hospital in Carmarthen where he was recorded as having paranoid ideations of being watched. He was admitted again for one night on 19th August after he had missed the last bus home and was suffering from hypothermia. The diagnosis recorded was of schizophrenia [3/997]. It does not appear to have been made with any substantial background information or mental state examination, and it was made by a doctor who was not a psychiatrist.

[52]By now A’s parents had moved to Kilrea in Northern Ireland. In October or November 1999, A came to stay with them. In December 1999, he was seen at The Ross Thomson Unit of the Route Hospital, Ballymoney. By then he appears to have been off all medication since August. The SHO recorded that he appeared to be paranoid and talked about his family saying things purposely to annoy him or to make him feel negative; he was worried about the negative vibes he got from the television and was paranoid about the church and solicitors. The SHO described him as “extremely thought disordered” – without further explanation - and thought that there was evidence of some paranoid delusions and delusions of reference. Where the patient thinks that something or someone is referring to him when they are not. He was not admitted, but was started on a dosage of chloropromazine. In late 1999 or early 2000, he moved back to Wales. 2000

[53]In March 2000, after A had been remanded on bail for attacking his landlord, Dr Yeates, a Locum Consultant at Wellfield wrote to A’s G.P, recording that A had felt persistent persecution by his landlord over various financial matters. A did not then describe any psychotic symptoms and Dr Yeates found no evidence of a major psychiatric illness at that moment. In May, Eileen went to find him on his 30th birthday. She found him living an isolated existence in Carmarthen and unable to look after himself. She arranged for him to come to Ireland and in June 2000, he moved back to living with his parents in Kilrea. He became increasingly irritable and aggressive towards them. In August 2000 a CPN recorded seeing A on 27th July 2000 when he noted that A said that his thoughts were influenced by the internet in some form of telecommunication and that he was able to pass thoughts to his father while in a different room telepathically. The former is a delusion of control and the latter a form of thought broadcasting.

[54]On 31st August 2000 A was sectioned and was again admitted to the Ross Thomson unit, against his will, where he remained for 3 months. Prior to his admission, he had become increasingly aggressive towards his parents. On two occasions they had left the family home due to fear of violence. When admitted he was preoccupied with his family’s treatment of him and with furthering his claim against the church or counteracting propaganda originating from the church relating to it. He also said that his friends would come and see his parents and would then constantly abuse him. He claimed to have had 18 brain haemorrhages and 18 nervous breakdowns. His thought was described as disordered and his mood somewhat blunted. His mother described to the unit how he ranted and raved continually in relation to his claim against the church and was incoherent when discussing this. He had the deluded belief that the Church had paid £700,000 in compensation to his parents and that his parents had spent the money. On 4th September 2000, his thought processes appeared disordered; he referred to his parents giving him verbal abuse and threats because of his pursuit of the church; to his sister having obtained £ 38,000 from the legal case; and to his family having connections to web sites. He refused to say whether he had any. He was recorded as having “systematised delusions”. A diagnosis was made of a relapse of paranoid schizophrenia. On 6th September, he referred to his parents as having control of propaganda; to his being exploited by the press; to articles “using his strength to sort out the case”; and to his being controlled by others. On 7th September, he referred to his family being interconnected through the internet, and, the notes say, “paranoid delusions continue”. On 8th September the notes record what is described as a delusional belief that he had seen Dr Walsh on the ward the previous week Dr Caplan regarded it inappropriate to use the adjective “delusional” since he would regard such a belief as being some belief outside a persons’ social and cultural background and consistently held. . On 11th and 12th September, he was described as hostile or extremely hostile and seriously thought disordered. Up to this stage, he was refusing medication. Thereafter he accepted olanzapine (having been told that the hospital could administer medication by injection). At one stage, he was being prescribed 25mgs nocte, which is a high dose. He continued (for a time) to believe that waves coming from his parents were spreading from the internet or the television and were affecting him; that his parents or his sister had cheated him; and, on one occasion that the doctor who had detained him, Dr Walsh, was an impostor; and to be thought disordered – a condition which he had displayed consistently since admission. On 26th October 2000, a diagnosis of schizophrenia was recorded (4/1354). By early November, his condition began significantly to improve. A remained in hospital until 19th December 2000.

[55]During his stay at the Ross Thompson Unit A met a lady – Carol - considerably older than himself, who has four children, with whom he formed a relationship. That relationship ended in October 2003, although they still see each other about once a week.

[56]Upon his discharge A was placed in supported accommodation at Shiels Court, to which he had previously been allowed out on a week’s leave. He was initially reluctant to go there, but since he has been there he has made considerable progress. Whilst at Shiels Court he has been maintained on olanzapine (15- 20 mg per diem), an antipsychotic drug and a tranquillizer. This causes him, when he sleeps, to sleep for quite some time (circa 11 hours). From 1992, he had been maintained on lithium (a mood stabiliser) for five years between 1992 and 1997, and for 7 years he was on haloperidol, an antipsychotic tranquilliser, and for 4 years on clopixol, an antipsychotic drug, by depot injection.

[57]A has from time to time been beset by intrusive thoughts, nightmares, and flashbacks. When Dr Caplan saw him in January 2002, A described having recurrent memories on an almost daily basis; but that later reduced to twice-weekly sleep disturbances with memories of abuse. In October 2003, at the time when he was breaking up with Carol, there was a programme on television about sexual abuse in the Birmingham area by Roman Catholic priests including Fr Clonan. A saw this programme and was very upset by it. He was also upset by newspaper reports which said that the police were looking for Fr Clonan, and which, therefore, suggested that the latter was still alive. These events are – as Dr Benians said – “deeply piercing triggers” and caused a recurrence of psychotic symptoms in the form of auditory hallucinations in which he felt that he heard the voices of one of the parishioners telling him he knew what he was doing and that he was equally to blame for the abuse (4/1299). A’s dosage of Olanzapine was increased (twice) and he was prescribed diazepam for a month. On 9th September 2004, A was reported as being anxious and agitated because he had been reliving the events of his past. On 24th January 2005 an incident involving a priest in Dungannon brought back unwanted memories and something similar happened in February.

[58]At Shiels Court A has been largely free But not entirely. In February 2004, for instance, he admitted that he had stopped taking his medication for a week and had become “quite paranoid towards a male staff member”: 6/1687 of positive psychotic symptoms, as might be expected on account of the anti-psychotic medication that he has been taking. On 23rd September 2004 [4/1380], he described himself at Outpatients as very well, optimistic about the future and said that olanzapine suited him. He has, broadly speaking, been upon an even keel. When his relationship with Carol subsisted, he would drive her around in a car; he spent nights away from the home. He shops, and cooks; he can clean. He has however exhibited a lack of drive and motivation. When he was at the Ross Thompson Unit, he needed encouragement to take part in activities (4/1362). Sometimes he stays in bed for a long time in the morning. And from time to time fails to attend out patients or to meet with his CPN. Voluntary (or other) work has been mooted on several occasions (see 6/1556-7, 1579, 1583) but he has not begun it. He stuck at a gardening job arranged by Shiels Court and a volunteer bureau for only a day. He has attended a computer course, with his mother’s encouragement, or the staff of Shiels Court’s prompting, but it is his mother and not he who has passed the exams. A’s mother and sister say that he has never retained his former level of vitality, motivation and enthusiasm and that he has no drive. He has a degree of unrealistic thinking about the prospects of meeting with “his” twins or how things will change once the litigation is over; Diagnosis

[59]The classification of mental illness is not easy and the diagnosis of A is not straightforward. The World Health Organisation in Geneva publishes a classification – The International Classification of Diseases (ICD -10) – of Mental and Behavioural Disorders. They also publish Diagnostic Criteria for Research – DCR - 10. DCR – 10 is a more rigid classification than ICD 10. It is used as a definition for research purposes so as to eliminate from particular studies cases which are not clearly within the category specified. In the United States, the American Psychiatric Association publishes a Diagnostic and Statistical Manual (DSM IV). In a classic work on and called “Schizophrenia”, 2nd Edition, edited by Hirsch and Weinberger one of the authors observed that ICD-10 and DM-IV :

“provide the criteria for diagnosing schizophrenia and other psychotic disorder. At best, they can only be considered an “arbitrary but well informed consensus on the definition of schizophrenia aimed at reliable communication” (Andreasen & Carpenter 1993). These reflect our current understanding of the concept of schizophrenia. These diagnostic criteria must be considered provisional constructs intended to fulfil the need for international communication and research. Therefore, a need for constant revision based on epidemiological, pathophysiological, aetiological validation and evaluation of emerging neurosciences and generic data cannot be denied…”

[60]These classifications are somewhat dated and ripe for revision. They were first published in 1994 and reflected the thinking of the 1980s or early 1990s. Moreover, they part company with clinical practice in that the treating psychiatrist does not have to adopt so rigid a classification and is unlikely to make a diagnosis on the basis of these classifications alone. Dr Caplan told me, I am sure correctly, that neither he nor Dr O’Neill would tend to use a diagnosis of acute polymorphic psychotic disorder because the classification systems are widely regarded as being problematic when it come to describing a transient psychotic state, particularly with individuals who have been sexually abused in childhood. He used that classification because it would place A in a category, which was not schizophrenia, and which was compatible with a reaction to the trauma of child sex abuse. An additional difficulty in diagnosis is that for several years A has been receiving anti psychotic medication. This renders it difficult to discern what is his underlying mental state.

[61]The definitions of mental illnesses in ICD -10 and DCR-10 are lengthy and complex. I have set them out in the Appendix to this judgment. The medical evidence

[62]I have read and heard the medical evidence of:(i) Dr Benians, a consultant child and adolescent psychiatrist of many years’ experience, who has seen six of Fr Clonan’s victims, including A, but who does not claim to be an expert in adult mental illness;

(ii) Dr Jane O’Neill a consultant psychiatrist at Holywell Hospital, Antrim; and

(iii) Dr Caplan, a consultant psychiatrist, who was called for the defendants. Dr Benians saw A, with Eileen, on 15th February 2001. Dr O’Neill interviewed A on 21st October 2002, and saw him together with Dr Benians for about 50 minutes on 12th May 2004, and again just before the trial. Dr Caplan saw A on two occasions, in 2002 and 2005. Dr Caplan

[63]In her written report of 18th July 2004 Dr O’Neill expressed the view that A, as well as suffering from PTSD, fulfilled the criteria for a diagnosis of schizophrenia in that he experienced second person auditory hallucinations, delusions of control – believing Fr Clonan was responsible for manipulating parishioners to put voices in his head - and persecutory delusions, as well as displaying a history of negative symptoms of schizophrenia such as lack of drive, lack of energy and lack of motivation. Dr Benians agreed with Dr O’Neill’s diagnosis. Dr O’Neill referred to a number of studies that indicate that a large percentage of patients with severe mental illness (including schizophrenia) have suffered child sexual abuse or physical abuse. She referred in particular to a recent (2002) study by Read, Agar, Argyle and Aderhold, which reviewed the case of 200 patients and found that those who had experienced sexual abuse in childhood or as an adult were significantly more likely to display two of the more characteristic symptoms of schizophrenia as defined in DSM-IV. She cited Read (1997):

“It seems reasonable to suppose that there may indeed be relationships between childhood abuse and adult psychosis and more specifically between childhood abuse and schizophrenia”

. She expressed the view that in the future A was unlikely to be able to live independently and would require his current level of support throughout his life, together with anti-psychotic medication.

[64]In her oral evidence she categorised A as a paranoid schizophrenic. She drew particular attention to the requirement for a diagnosis of acute polymorphic disorder that the symptoms should be rapidly changing and that the total duration of the disorder should not exceed 3 months; and the requirement for a diagnosis of acute polymorphic disorder with symptoms of schizophrenia that the symptoms of schizophrenia should not persist for more than 1 month. She regarded such a disorder as a brief illness which cleared up swiftly without residual disability. If there was more than one episode, one would begin to suspect something else. She accepted that, prior to his admission to the Ross Thompson Unit A had episodes, often precipitated by drug use, and accompanied by mood disorder, which displayed more of the features of an acute polymorphic psychosis. Those who treated him then did not, in her view, know the appropriate diagnosis and their use of lithium was not consistent with a diagnosis of acute polymorphic disorder, that drug being appropriate for long term use for mental disorders such as manic depression rather than acute disorders. But his admission to the Ross Thompson Unit in August 2000 revealed distinct symptoms of schizophrenia. He believed(i) he was being persecuted,

(ii) that £ 700,000 had been stolen from him,

(iii) that his family were interconnected by the internet,

(iv) that he could communicate mind to mind with his father, and

(v) that waves from the television and internet could affect his thinking. She regarded these symptoms as falling within category G 1 (1) of the DCR – 10 definition (see Appendix). In addition he had G 1 (2) symptoms viz (i) fleeting hallucinations [but not 3rd party hallucinations, which are a classic first rank symptom], and (ii) thought disorder. She also regarded him as having some emotional blunting, evidenced by his failure to return to his former cheerful state, his inability to get up in the morning sometimes, and a definite lack of drive. Further, the fact that he had relapsed on occasions when he had failed to take his medicine suggested to her an underlying long term psychotic illness.

[65]It was apparent from her evidence that it was not her view that sexual abuse was the only cause of A’s mental illness, in the sense that the abuse was of itself and without regard to other factors (such as a vulnerability to schizophrenia) the cause of A becoming schizophrenic. Her view was that the sexual abuse was a significant contributory factor in that A was highly unlikely to have developed schizophrenia without it, and that the abuse together with other factors, which may or may not be genetic, operated to produce this result. She referred to the fact that many, perhaps most, psychiatrists suggest that a vulnerability to developing schizophrenia may have a neurodevlopmental cause in that an abnormality in such development, whether caused by genetic factors, viral or obstetric injury, or repeated psychological trauma in early life, may predispose individuals to the disease. She cited an article by Read & Ors in Psychiatry Winter 2001 The Contribution of Early Traumatic Events to Schizophrenia in Some Patients: A Traumatic Neurodevelopmental Model. which suggests that it is possible that for some adults diagnosed as schizophrenic adverse life events can not only “trigger” schizophrenic symptoms but, if they occur early enough or are sufficiently severe, mould the neurodevelopmental abnormalities that underlie the heightened sensitivity to stressors found in adults diagnosed with schizophrenia. It is to be noted however that such studies as there have been suggest that “early enough” does not extend beyond 6 years of age (see the Read paper, page 329, LHC, first full paragraph). She referred, also, to the fact that a high proportion of patients with schizophrenia have suffered from child sex abuse, that such patients often show a similar over-reactivity of the Hypothalamic – pituitary – adrenal (HPA) axis to that associated with schizophrenia, and that that some abused children display psychotic symptoms such as hearing the voice of their abuser which mirror the abuse. Negative symptoms

[66]The discernment of what are in truth negative symptoms of schizophrenia is not without difficulty. Dr O’Neill distinguished A’s not getting up in the morning, lack of drive, motivation and concentration (negative symptoms of schizophrenia, which she regarded as less significant for diagnostic purposes but more useful as indicators of prognosis) from his avoidance of what reminded him of the abuse and general low mood (symptoms of PTSD). Dr Caplan accepted that A’s staying in bed until lunchtime could be such a negative symptom as could his lack of drive, motivation and concentration (although he thought that these were not to be explained as such symptoms in this case). Dr Caplan

[67]Dr Caplan is a consultant psychiatrist at the Southern General Hospital Glasgow with very extensive experience in the diagnosis, assessment and treatment of psychiatric disorder particularly in the field of sexual abuse. In his report of 29th January 2002 he expressed the view that the primary diagnosis is a complex form of severe PTSD. He also described A as having a personality disorder. He recognised that there were many psychiatrists who would refrain from such a diagnosis on the ground that it is pejorative and not specific and pointed out that the classification of personality disorders “is one of the least accepted sub-classifications of psychiatric disorder within the psychiatric profession”. He, also, took the view that at times of extreme isolation and stress A has presented with symptoms that are best diagnosed as Acute Polymorphic Psychotic Disorder. He did not consider that there was sufficient evidence for a diagnosis of schizophrenia. He found no evidence of any factor other than the abuse which would have cause A to develop a psychiatric condition.

[68]Dr Caplan saw A again on 10th January 2005 together with Eileen for a period of about two hours, when his mental state was “grossly normal” i.e. appeared normal. He noted a significant improvement in A’s self esteem, and established a good rapport during the course of a nearly two hour interview, to which A contributed and whose purpose he understood. He found significant improvement in A’s PTSD in that the recurrence of intrusive imagery had reduced and there was some evidence that he had made progress in relation to his personality disorder. In addition there had been no significant episode of acute polymorphic psychotic disorder. He discerned no evidence of any psychotic features. A was aware of the make up of his benefits. He was saving £20 a week. This presented to him a picture quite different to that of a typical schizophrenic, who is often unkempt I place no great store by the smartness of A’s clothes since Eileen bought them for him for the interview. , and incapable of understanding what money they have, let alone saving any. Nor did the records of Shiels Court indicate to him that A was someone with the negative symptoms of schizophrenia – apathy, blunting and lack of motivation.

[69]In his oral evidence Dr Caplan reiterated his view that, although schizophrenia would be one of his differential diagnoses, the evidence taken as a whole (i.e. A’s presentation from 1992 onwards) did not support such a diagnosis. He pointed out that psychotic behaviour represents a level of disintegration of the mind; and that the greater the remove between a patient’s beliefs and reality, the more inclined one would be to diagnose schizophrenia. In the present case A’s delusions, when he had them, were not completely divorced from reality. Insofar as they related to his abuse, they were grounded in it. He was taken through the history of A’s admissions from July 1992 onwards. He regarded that history as showing a changeable picture with a series of different presentations, and a degree of confusion or doubt as to what they signified, in which, even when A had delusions, his departure from reality was not such as would justify a conclusion of schizophrenia. He drew attention to the fact that, although schizophrenia was diagnosed when A was at the Ross Thompson unit in the second half of 2000, the diagnosis did not seem to include PTSD or involve any reflection on the previous diagnoses made or the pattern of A’s presentation. He regarded as indicators against such a diagnosis(a) the changeable presentation of A prior to 2000;

(b) his relative return to normality;

(c) his stability since leaving the Ross Thomson Unit and the lack of emergence of psychotic symptoms to any significant extent at Shiels Court.

[70]He referred to an article published in the British Journal of Psychiatry in 2004 by Josie Spataro and others entitled “Impact of child sexual abuse on mental health”. The study followed up a large cohort of boys and girls who had been examined by forensic physicians in Victoria, Australia, following allegations of sexual abuse, in order to ascertain the frequency with which they were subsequently treated in public mental health services. Of the 1612 children, 1327 were females and 285 were males. The mean age when the subjects were examined was 9.4. years. 12.4% of them had had contact with the public mental health service between 1st January 1990 and 1st July 1991, significantly fewer than in the comparison population of Victoria (3.6%). The study found that the rate of schizophrenic disorders (together with some other disorders) did not differ significantly from the general population control. But individuals in the child sex abuse cohort were more than three times as likely to be diagnosed with an anxiety or stress disorder such as PTSD. These results do not support (although they do not exclude) an association between child sexual abuse and psychosis. But, as the authors pointed out, care is needed in interpreting the results. The average age of the subjects was in the 20s and many had thus to pass the peak years for the development of schizophrenia namely the early 20s. In addition the survey was heavily weighted in favour of females, whereas schizophrenia is slightly more common in males. The classification of A’s mental illness

[71]Given the divergence of medical opinion I approach the question of classification of A’s illness (other than PTSD) with some diffidence. Part of the problem lies in the process of classification itself. It would be intellectually convenient if diseases of the mind could be placed in neat compartments. But even under the present classifications it is not easy, as the present dispute shows, to know into which category or sub-category any given patient’s illness belongs. Some symptoms are common to several different categories. Further schizophrenia may embrace several different illnesses; and there may a close relationship between one illness and another. Thus in “Schizophrenia” Bevington wrote:

“Evidence is accumulating to show that there is a close relationship between post-traumatic stress disorder (PTSD) and psychotic symptoms. As yet, its nature remains obscure, but if any such relationship exists it would have obvious links with the role of stress in the aetiology of schizophrenia… One possibility is that some people who have been exposed to extreme trauma develop psychotic symptoms (delusions, hallucinations) whose content is also closely related to the details of the traumatic experience. If this happens it may come about by a totally different process from the genesis of symptoms in disorders forming the majority of cases or schizophrenia or it may not…”

Conclusions

[72]If it is essential to place A’s illness into one category rather than another I conclude that, in addition to PTSD, what A has suffered from is, as Dr O’Neill believes, appropriately to be regarded as a form of schizophrenia. I reach that conclusion for the following reasons. First, the nature of the symptoms exhibited by A in September 1997, and in 2000 both prior to and during his admission to the Ross Thompson unit between August and December 2000, appear to me to be schizophrenic in character and several of them are either first rank Schneiderian symptoms or within DCR-10 F.20 – F 20.3 G1 (1). They included, in 1997, 3rd person hallucinations and thought insertion, and in 2000, delusions of control, thought broadcasting, and other delusions (e.g. the kettle being switched on automatically, his family being interconnected through the internet, Dr Walsh being an impostor), together with thought disorders. Second, the length of time over which those symptoms lasted is not in my view consistent with an acute polymorphic disorder. In 2000 they appear to have manifested themselves, at least in prodromal form, from as early as June, and not significantly to have abated, following the administration of anti-psychotic drugs, until the beginning of November. Third, A’s mental illness did not have the character of rapid change in type and intensity and speed in resolution that would characterise it as an acute polymorphic disorder. On the contrary it appears to have gone on longer than the period of 3 months specified in F 23.0 DCR - 10 F. Further the symptoms of schizophrenia persisted for more than one month which brings the case outside F 23.1. DCR - 10 C. Fourth, A’s illness does not seem to have manifested symptoms from at least two categories of F 23.0 DCR – 10 D at the same time. Fifth, I take account of the fact that A’s mental health improved with the use of Olanzapine, whilst recognizing that that might have been for its tranquilising effect. Further the fact that A had previously been treated with anti-psychotic medication for long term use (chlorpromazine, haloperidol, risperidone, thoridazine and olanzapine) indicates that others thought that he was not going through a brief psychotic episode. Sixth, it seems to me that the view of those currently treating him is entitled to some respect. Seventh, I find it difficult to characterise what occurred in either 1997 or 2000 as no more than the symptoms of a personality disorder.

[73]I do not accept that A cannot have been suffering from schizophrenia because, if he was, the abuse could not have caused it, and yet the experts agree that his mental state is attributable to that abuse. The evidence does not establish that the abuse could not have led to A’s mental illness, if that includes schizophrenia. The likelihood, as it seems to me, is that the terrible abuse to which A was subjected led to his suffering both post traumatic stress disorder and that disorder of the mind which is symptomatic of schizophrenia.

[74]I doubt, however, whether it is necessary to reach such a conclusion. First, if what A was suffering from in August 2000 was not schizophrenia it was something very like it – psychotic symptoms, such as those who have PTSD are known to suffer, which share much in common with symptoms of schizophrenia. Second, the central question is the impact of A’s illness, however labelled, on(a) his need of care; and

(b) his prospects of employment. Third, the classification system is far from perfect. Future Accommodation and Support/Employability

[75]In her original report Dr O’Neill expressed the view that A was unlikely to be able to live independently and would require the level of support that he is currently receiving throughout his life. She, also, expressed the view that A would not be capable of independent employment and would be incapable of managing large sums of money.

[76]In his report of 29th January 2002 Dr Caplan expressed the view that the overall prognosis for A’s psychological health was poor on account of the fact that the symptoms of PTSD had persisted for many years and that A’s personality disorder was deeply engrained and to some extent likely to remain lifelong. He expressed the view that, now that A had obtained some form of stability, the likelihood of another acute psychotic episode was very much reduced but that such an episode would probably re-emerge at some point in the future. In the light of that prognosis he took the view that A would not be able to sustain stable and consistent employment of anything more than a rudimentary nature and that it would take at least another year or two (i.e. until 2004 or later) before he could manage even part time work, and then only with the support of a work rehabilitation project. He expressed the view that care was being provided at just the right level. He suggested no change to his current treatment but said that if A remained stable over the following year (at least) there should be a further attempt to offer him specific sexual abuse counselling, whilst recognising that one would have to think very carefully before doing this because of the very real risk of precipitating further psychotic episodes.

[77]In his supplemental report of 10th January 2005 Dr Caplan agreed that A should remain in supported accommodation but did not consider that he would require this level of support throughout his life. He reached the view that A was now capable of benefiting from some form of psychological counselling, provided it was given whilst he remained in his present supporting environment. He thought that with this treatment A’s personality disorder could be expected to continue to mature gradually such that by his mid 40s it would have considerably less of an impact on his day to day functioning. He expressed the view that whilst A would remain vulnerable to further brief episodes of psychosis he would not expect that to be a significant feature in his future presentation given the degree of support he was receiving from his family and statutory agencies. As to employability he now took the view that within 2-3 years A could be expected to be capable of working up to 2 ½ days in (say) a small, quiet salon washing hair and providing the occasional style. In the longer term he thought that A might achieve employability of up to 16 hours a week, working 4 out of 5 days for half a day although he might have one bad day a week. He would need supported accommodation but not at this level. The experts’ meeting

[78]On 24th February 2005 Dr O’Neill and Dr Caplan agreed, inter alia, that sexual abuse was the main cause of A’s mental illness; that he was currently unemployable; that he should remain in supervised accommodation with 24 hour care workers; that A should continue to take anti-psychotic medication and that he should be skilfully assessed by a very experienced clinical psychologist to assess his suitability to benefit from Cognitive Behavioural Therapy (CBT). They also added riders of disagreement. Dr Caplan expressed the view that, if schizophrenia was the correct diagnosis, then sexual abuse was not the cause; Dr O’Neill the view that A’s negative symptoms of schizophrenia made it unlikely that he would ever be employable. Dr Caplan thought that A should be able to move from supervised accommodation within a year and might eventually achieve independent living; Dr O’Neill doubted whether he would ever achieve independent living but thought he might be able to move from 24/7 supervision In fact the support at night is provided by the availability of help by or following telephone contact. in 4-5 years. They disagreed as to whether A would need antipsychotic medication long term.

[79]Dr O’Neill in her oral evidence remained of the view that it was wholly unrealistic to expect A to achieve employment in the open market. But she made clear that she envisaged the continued support of a CPN, and the involvement of an occupational therapist to assess A’s skills in daily living and to try and help him maximise his level of independence and facilitate employment. She envisaged getting him into the day centre from 9 to 5 in order to get into a routine, with a view to sheltered employment in catering, gardening or packing. In a later passage in her evidence she doubted that he would be capable of a couple of hours of hairdressing a week. She thought that it might be possible for A to have support for less than 24/7 although she expressed this rather doubtfully. If so, he would need to be somewhere where there was support available. But he would, in her view, be on life long medication such as onazapine. He fell into that one third of schizophrenics who had repeated psychotic episodes and may, or may not, have a residual deficit in terms of negative symptoms. She accepted that he might be able to work for short periods on a voluntary basis, without commitment. Digression

[80]One of the reasons for the divergence of view between the experts is that, whereas both agree that A suffers from PTSD, Dr Caplan lays particular stress on the fact that, in his view, PTSD is the most important diagnosis for which, by and large, A has not been treated. In the light of A’s improvement he now thinks that the cognitive behavioural therapy approach should be adopted and that A could probably take it. So he proposed(a) that A is kept on olanzapine but at 10mgs for, say, another two years;

(b) that he undergoes CBT with a skilled therapist, starting soon and working slowly – he envisaged weekly or fortnightly lessons, moving to fortnightly and monthly, so that there would be at least 50 over a 2 year period. The aim of the CBT would be to enable A little by little to deal with his anxieties about the past, improve his self esteem and help him to interact with others. He next envisaged that within a year or so from now one should attempt a reduction in the level of his support - by transferring A to a project whereby he takes a tenancy of premises but the organisation (such as Praxis, the NIAMH, the Richmond Fellowship or Clubhouse all N.I. mental health charities) that runs the project provides a degree of support, in the form of visiting and assistance, but less than that available at Shiels Court (“a supported tenancy”). He accepted that it was difficult to tell now how far it would be possible to get, but regarded it as important to try, because the alternative was that A would become institutionalised. This was something he regularly attempted with his patients. Then a year after the move, i.e. about 2 years from now he would begin progressively to reduce the olanzapine over a year.

[81]He also thought that A should be capable of some form of modest employment, particularly in the light of A’s engaging personality, which he envisaged as happening in 1 or 2 years (although he could start to do voluntary work fairly soon), of say 1 or 2 days a week. His view is that the same would apply if contrary to his opinion the diagnosis was one of schizophrenia subject to two qualifications:(a) such a diagnosis has a certain predictive value – it may cause people to categorise him in a way that is not helpful to him; and (b) it is likely to mean that he will continue on his present medication which contributes to his tiredness. Prognosis

[82]Although I have accepted that A has suffered from schizophrenia (or something very like it), and, to that extent, I differ from Dr Caplan, I was much impressed by Dr Caplan’s evidence both generally, and particularly insofar as it dealt with the prognosis for the future. Whilst I have no doubt that both Dr O’Neill and Dr Caplan are well qualified practitioners it seemed to me that Dr Caplan’s background provided him with an impressive range of experience in dealing with the mental health problems of those who have suffered child sex abuse, and with those suffering from PTSD, schizophrenia or other comparably severe illnesses. His daily involvement in the placement outside supervised accommodation of those with disorders such as PTSD seemed to me to give him a valuable insight into what can be achieved, and should be attempted, in order to improve their lives. I accept Dr Caplan’s view that it is the PTSD that A has suffered as a result of the trauma of child sex abuse which is the most important feature of his condition, and that, in A’s interests, it needs to be addressed, perhaps to a greater extent than has happened before.

[83]I have no doubt, therefore, that the experts are right to agree that CBT should be tried - but on a cautious basis, since the risks of relapse are both real and serious. If this is to take place it will probably need to be done over at least a two year period. The cost of so doing will be at least £ 5,000 (50 sessions at £100) and should form part of the award. I also accept that, when the time is right, A should be encouraged to proceed to a greater degree of independent living in some form of supported tenancy, if one is available, within 1 – 2 years. Whether that can be done depends on(a) A’s progress with CBT;

(b) the availability of such a facility. The former is unpredictable. The latter is uncertain. No one has formulated a specific plan, nor do I have any evidence of the availability of such a tenancy to A over the next few years, or of the terms upon which such a tenancy might be available, save that it appears to be common ground that the support element would be provided free of charge by the charity involved.

[84]In those circumstances it seems to me that I should first consider whether, upon the worst hypothesis, namely that A has to remain at Shiels Court indefinitely, he will, once he receives his award, become subject to means testing in respect of benefits and, thus, have to pay, himself, the costs presently borne by the Northern Ireland Social Services. If the answer to that question is “no”, the length of the time he is likely to have to stay at Shiels Court (he will have to spend some further time there in any event) ceases to be of much materiality. Financing A’s stay at Shiels Court

[85]The present arrangements for financing A’s stay at Shiels Court are (using the figures current at 1st December 2004) that NIAMH receives his weekly housing benefit of £35.69 together with further support costs, which I infer are a form of housing benefit (as, indeed Eileen’s statement confirms them to be), of £275.18 per week. The support element paid by the Housing Executive covers a number of services. Without these benefits A would have to pay £334.87 per week to remain at Shiels Court. The question, therefore, arises whether, once he receives a very substantial award of damages, the benefits will cease because of means testing. If A will lose the benefit of £334.87 per week but needs to remain in Shiels Court for life he will have a very sizeable claim. Even if he stays there for a lesser period, there will be a substantial one. A and his advisors seek no windfall payment if A will not, in fact, lose that benefit, but they are understandably concerned that that benefit may be lost as a result of the court’s award, without the award itself taking account of the loss. In order to determine the position it is necessary to consider both the Law of England and Wales, from which A comes and to which he might return, and, perhaps more importantly, that of Northern Ireland. England & Wales.

[86]By virtue of section 117 (2) of the Mental Health Act 1983 there can be no charge for services provided to a person formerly detained under the Act. Further if the award is held by the Court of Protection it would be excluded from means testing: see Firth v George Ackroyd Junior Ltd (2000) Lloyds Med Rep 313; Bell v Todd (2001) All ER (d) 348; Ryan v Liverpool Health Authority (2001) AER (D) 15. The same would be so if the monies were held in a special needs trust: Kemp & Kemp 5-039. Northern Ireland

[87]The equivalent of the Court of Protection in Northern Ireland is the Office of Care and Protection. By virtue of a number of regulations any sum of capital administered on behalf of a person under the provisions of Order 80 or a patient under Order 109 of the Rules of the Supreme Court (Northern Ireland) 1980 which derives from an award of damages for personal injury to that person is disregarded for means testing purposes. The relevant provisions are as follows:(a) For housing benefit: Regulation 38 (2) of the Housing Benefit (General) Regulations (Northern Ireland) 1987, and Schedule 5, paragraph 45, as added by Regulation 13 of the Housing Benefit (Miscellaneous Amendments) Regulations (Northern Ireland) 1994 and amended by Regulation 7 (5) (a) and (6) (c) of the Income-Related Benefits and Jobseeker’s Allowance (Amendment No 2) Regulations (Northern Ireland) 1997; in addition by paragraph 5 of Schedule 5 the capital of anyone on income support is to be disregarded;

(b) For income support: Regulation 46 (2) of the Income Support (General) Regulations (Northern Ireland) 1987 and paragraph 43 of Schedule 10, as added by The Income-Related Benefits (Miscellaneous Amendments No.5) Regulations (Northern Ireland) 1994 and amended by Regulation 7 (5) (a) and (6) (d) of the last mentioned 1997 Regulations No submission was made to me that the income from such capital might be taken into account for means testing purposes, although I was not specifically directed to any regulation that excludes such income. But the relevant provisions would appear to be paragraph 17 of Schedule 4 and paragraph 22 of Schedule 9 to the 1987 Housing Benefit and Income Support Regulations.

[88]Further regulations provide that, if an award is paid into a trust, neither the capital nor the income is to be regarded for means testing purposes: see: (b) as to Housing Benefit: As to capital: Regulation 38 (2) of the Housing Benefit (General Regulations) 1987 and Schedule 5 paragraph 13 as amended by Regulation 12 (c) of the Housing Benefit (General) (Amendment No.3) Regulations (Northern Ireland) 1990 As to income: Regulation 33 (2) of the 1987 Regulations and Schedule 4 paragraph 15 (2) and (6) as amended and added to by Regulation 3 of The Social Security (Personal Injury Payments Amendment) Regulations (Northern Ireland) 2002; (c) as to Income benefit: As to capital: Regulation 46 (2) of the 1987 Regulations and Schedule 10, paragraph 12, as amended by Regulation 9 (c) of the Income Support General) (Amendment No. 3) Regulations (Northern Ireland) 1990. As to income: Regulation 40 (2) of the Income Support (General) Regulations (Northern Ireland) 1987 and Schedule 9, paragraph 15 as added by the 2002 Regulations referred to above. Is A a patient and, if so, does he avoid means testing?

[89]There are two further questions. Firstly, the defendants contend that, although the Court of Protection has appointed Eileen a receiver of A, upon the footing that he is a patient, that occurred at a hearing which they were not permitted to attend. In their submission the evidence before this court shows that A does not come within the definition of patient and it is for this court to determine whether he is a patient or not. Secondly, if he is a patient, those representing the claimant point out that A’s affairs are presently the concern of the Court of Protection in England & Wales, whereas the Northern Ireland regulations that prevent an award being taken into account for means testing purposes refer to a person whose award is being administered under Order 80 or Order 109 of the Rules of the Supreme Court (Northern Ireland) 1980, and A is not such a person. Order 80 relates to the control of money recovered in Northern Irish proceedings by or on behalf of a person under a disability. Order 109 relates to the property and affairs of patients under the jurisdiction of the Office of Care and Protection. Thus, whilst, if he was a patient in England, with his affairs under the control of the Court of Protection, and in receipt of benefits in England, A would not be means tested, and the same would be so if his affairs were under the control of the Office of Care and Protection in Northern Ireland, and A was in receipt of benefits in Northern Ireland, the fact that his affairs are under the control of the Court of Protection in England & Wales, but he is in receipt of benefits in Northern Ireland, means, or may mean, that he cannot escape the means testing of his benefit upon the footing that he is a patient. Is A a patient?

[90]A patient within the meaning of the Mental Health Act 1983 is a person who by reason of mental disorder, as therein defined (“Mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of the mind”), is incapable of managing and administering his property and affairs. In the present case there is no doubt that if A is so incapable it is by reason of a mental disorder within the meaning of the Act. If a judge of the Court of Protection, after considering medical evidence, is satisfied that a person falls within this definition he becomes referred to as a patient and the functions of the Court in relation to the management of his property and affairs become exercisable: section 94 (2) of the Act. In the present case Eileen was appointed a receiver. The medical certificate was signed by Dr Thompson of the Ballymoney Mental Health Resource Centre, the consultant responsible for his ongoing treatment. In essence it expressed a diagnosis of chronic schizophrenia based on the following: “When unwell he suffers from severe thought disorder hallucinations and delusions” together with a statement that there was no prospect in his recovery of mental capacity because “he will always be vulnerable to relapse”; and a statement that he was capable of understanding that the application was being made and that he was happy with this.

[91]Whether someone is a patient must depend upon the time at, and the context in which, the question arises and the “affairs” in relation to which his powers of management and administration are in issue. The test is to be applied to the particular transaction(s) in relation to which the question of capacity arises. When the matter was considered by the Court of Protection the affairs in question would have covered the totality of A’s business affairs, including in particular the handling of the litigation, and any compromise thereof, as well as the handling of any award.

[92]The question for present purposes is whether A is capable of managing the large award that will be the result of this judgment, since it is the continuing receivership costs from now onwards that form part of the claimant’s monetary claim. That requires the ability(i) sufficiently to understand, when these are explained to him, the issues that will arise in relation to how such a fund is to be dealt with and the effect of taking one course rather than another, and to understand, absorb, and, to the extent necessary, retain the information given to him by advisers, at any rate if given in broad terms and simple language, so as to be able to make decision on the basis of it; and

(ii) to make and communicate decisions: see MartinMasterman-Lister v Brutton & Co (2003) 3 AER 162.

(2002) EWCA Civ 1889

; Russell Mitchell v Ryan Alasia

(2005) EWHC 11

[93]A person is not, however, to be regarded as incapable of managing his affairs because, in order to do so, he will need to take advice, or because he may not take it, when given, or because he is vulnerable to exploitation, or at risk of taking rash or irresponsible decisions: see Chadwick, L.J. in Martin Masterman-Lister, paragraphs 77-78; although the outcome of decisions that the person in question has taken in the past are likely to be indicators, in some cases powerful indicators, of understanding or the lack of it. The burden of proof of establishing that someone is a patient rests with whoever asserts that he is one. The presumption is that all adults are capable of managing their property and affairs; it is important that that should be so since if a person is to be treated as a patient he is thereby deprived of civil rights.

[94]Mr Robert Seabrook, Q.C., on behalf of the claimant, submits that I should not determine whether A is a patient because no issue was joined on the pleadings as to whether he was and because the Court of Protection has determined that he is. As to the pleadings, paragraph 11 of the Particulars of Claim, which pleaded the claimant’s loss and damage, averred, in the particulars of that paragraph, that the claimant became a patient from a time before he attained his majority. That was met by an admission that the claimant had suffered some loss but a non admission as to the extent of that loss.

[95]In circumstances where the claimant is seeking to recover future receivership costs the onus is on him to show that he is and will remain a patient for the period over which he claims that those costs will extend. Accordingly I do not think it right to decline to consider this question on the ground that the defendants’ non admission did not aver in terms that A was not a patient. As to the determination of the Court of Protection, I do no think it to be conclusive. The decision does not have the status of one that binds all persons, even though they were not parties to the original proceedings. Further a decision made by the Court of Protection some time before 1st March 2005 to appoint Eileen as Receiver cannot foreclose the question as to whether A is now and will indefinitely remain a patient. I note that in Russell Mitchell v Alasia Cox, J, considered whether the claimant, whom the Court of Protection had decided was a patient and in respect of whom a Receiver had been appointed, was and would continue to be one. She concluded that, in the context of pursuing his claim for compensation, he was a patient, but that he would not continue a patient indefinitely and would cease to be one three years after the trial. She awarded a sum in respect of the costs of the receivership likely to be incurred during that period.. The medical evidence

[96]Dr Benians has expressed the view that A has “never been fully able to manage and administer his affairs”: (Report of 13th June 001 -1/63); and that he remains a patient within the Mental Health Acts “and is likely to do so for the foreseeable future” (Report of 27th May 2004 1/83), although confirming that when he examined A on 15th February 2001 “he showed no features of mental illness”.

[97]In his first report of January 2002 Dr Caplan concluded, in relation to A’s mental state, that it was “essentially .. normal”. He was – as he put it in evidence - alert, aware of the purpose of the interview, displayed no evidence of any psychotic features, appeared to have no attention, concentration, or memory deficit, and had a good insight into his mental illness. He recorded the fact that A knew exactly how much he was getting per week in the form of four different benefits, and how much he was paying to the project. In relation to the question of whether A was a patient for limitation purposes he expressed the view that it was only in the last year or two [i.e. since 2000] that A had been stable enough to initiate the present action. In his report of 10th January 2005 Dr Caplan recorded that A “kept in touch with world events at a sophisticated level and was able to discuss in complex and abstract terms, the recent tsunami in South East Asia and to hold a balanced comprehensive discussion around the implications of the event”; and he again recorded A’s account of the make-up of his four different benefits and that A’s mental state was essentially normal. An entry in the Shiels Court notes (6/1568) indicates that on 25th February 2004 A was expressing considerable interest in the financial side of Shiels Court and had worked out how much revenue each house was bringing in per year and wanting to know where this revenue was being channelled.

[98]In her report of 18th July 2002 Dr O’Neill expressed “concern that A had difficulty in managing money and would be incapable of managing large sums of money”. However, after that report was prepared she and Dr Caplan agreed the following in relation to A’s ability to deal with his own financial affairs:

“[A] is not best placed in the short term to make realistic decisions about his Award. He will need advice, perhaps only from family members No legal intervention is required in his dealing with his award”

He will need advice, perhaps only from family members No legal intervention is required in his dealing with his award” Whilst the last sentence is not completely clear it seems to me that the experts were of the view that with help, which would not have to be legal, A could manage his financial affairs.

[99]In her oral evidence Dr O’Neill, whilst accepting that she had subscribed to the agreement to which I have just referred, pointed out that A had blown the money that he received from the CICB and that, whilst he could comprehend advice, he might very well not take it; and that the role of the office of Care and Protection was to protect vulnerable individuals from exploitation. The non medical evidence

[100]A’s mother gave evidence that A’s response to documents is to glance at them and throw them the rubbish bin. A had been sent 3 letters with forms to complete to enable his different benefits to be paid directly into his bank account. Whilst she had been away visiting Helen in New Zealand, A did not complete the forms, or ask anyone at Shiels Court to help him to do so, and so his benefit payment ceased and the situation had to be dealt with by her when she returned. Eileen said that A could no longer keep up with her anymore and needed someone to confirm things for him. She felt that A was like her 7½ years old child. In addition A appears substantially to have wasted the £12,5000 he recovered from the CICB. I have no evidence from A on this topic. Conclusion

[101]In my judgment, A has not been shown to be, and is not, incapable of managing his affairs, if that criterion is interpreted in the way laid down by the authorities. I am reluctant to reach a decision which differs from that of the Court of Protection. But the decision of that Court appears to have been taken upon the basis of very considerably less evidence than I have had, and without argument to the contrary or knowledge of the agreement between the experts in the present case. I find the evidence of Dr Caplan on this point persuasive and the agreement between him and Dr O’Neil instructive. Nothing in Dr O’Neil’s evidence persuades me that, when one applies the correct test, A is to be regarded as a patient. A will need advice, help and prompting; but that does not mean he is a patient as interpreted in the latest authorities.

[102]Accordingly, the Claimant is not, in my judgment entitled to the future receivership costs that he claims.

[103]If A is not a patient, it follows that he cannot escape means testing upon that footing. If, contrary to my finding, A is to be treated as a patient, then the apparent, and, I think, actual, effect of the legislation is that A cannot escape means testing since he is in receipt of benefits in Northern Ireland, but his affairs as a patient are being administered in England and Wales. Mr John Ross, Q.C., on behalf of the defendants, submitted that, if A was a patient, the Court of Protection could without difficulty “transfer” the damages awarded to Northern Ireland to be administered by the Office of Care and Protection there and he told me that the Master of the Court had confirmed that that was so. Another possible route would be to make a separate application to that Office so that A could be treated as a patient in both jurisdictions. I would certainly find it surprising if no mechanism could be found to avoid A falling between two stools, so far as means testing is concerned. The manifest purpose of the legislation on both sides of the Irish Sea is to exempt awards to a patient from means testing. Had I decided that A was a patient I would have deferred final consideration of this aspect of the case and would have asked the Master of the Court of Protection to report to the Court as to whether the “transfer of damages” of which Mr Ross spoke was an available method of addressing the problem, and whether there was any other.

[104]There remains, however, the availability of the Special Need Trust, as a method of avoiding means testing. No reason was suggested to me as to why this expedient should not be adopted; and it would seem to me unreasonable not to do so.

[105]Accordingly, as I find, A can, by taking reasonable measures, avoid means testing in respect of his award and there is no reason, therefore, why he should be awarded anything in respect of the loss of such benefits.

[106]That largely relieves me of the necessity of deciding how long A will have to remain at Shiels Court. If it were necessary to do so, I would conclude that there is a 50%, but no more than a 50%, chance that A would be able to leave Shiels Court in about 2-3 years time. I find it impossible to be more precise because so much depends upon the outcome of the CBT, which has not even begun. It is accepted that, if A were to remain at Shiels Court for life, he would have to give credit for money saved on utilities, and a figure of £500 per annum is accepted. I assess the appropriate credit for A to give to take account of that figure, and the prospect that he may cease to reside at Sheil’s Court as £ 7,000. The new bungalow

[107]In March 2004 A’s parents applied for outline planning permission to build a bungalow on their land. According to A’s mother the idea for the bungalow came from the family (other than A) since they thought that it would be nice to have a holiday home for them to come to, the parents’ house having only 3 bedrooms. The idea was not to have a home for A. A had said that he did not want to live close by because he would be lonely and too far out. This evidence is inconsistent with(a) the observation in a letter of 26th March 2004 from A’s consultant psychiatrist [4/1306] that “with regards to the future, he does seem more positive, with his family applying for planning permission to build a bungalow on their property”;

(b) a reported statement of A on 17th June 2004 [6/1688] that A was going to build a house beside his family and live there; and

(c) the evidence of Eileen that she was not aware of her parents’ plan to build on their land and application for planning permission until the trial, although she recalled her sister Frances saying at some stage that it would be a good idea if they had more room at their parents property.

[108]According to A’s mother the architects/agents suggested that planning permission would not be obtained without evidence in support as a result of which they secured a letter from the local doctor (4/1305). This letter, of which Eileen said she had never heard until the trial, said that A missed the security of living close to his parents and that a house adjacent to his parents would give him an ideal combination of security and independence. The letter from the architects of 11th March 2004 told the Planning Service in terms that the parents were “seeking permission for a dwelling house for their son [A]” and enclosed the doctor’s letter in support. On 24th August the Planning Committee agreed that the application be approved, although the opinion of the Planning Service was that it should be refused. The application was refused by the Service but notice of that refusal was delayed on account of an industrial dispute and staff shortages. On 31st October 2002 a Member of the Legislative Assembly wrote to the Planning Service indicating that the application was one where there were extenuating circumstances, and asking for a refusal to be issued so that an appeal could proceed. A formal refusal was not issued until December.

[109]I am prepared to accept, in the light of A’s mother’s evidence, that it is not intended that A should come and live in the new bungalow. Whether the planning authorities have been presented with a fair and accurate picture is a different question. What might A earn in the future?

[110]I am satisfied that there is no prospect of A obtaining full time employment in the open market. The contrary is not suggested. I accept Dr Caplan’s evidence that in 2 or 3 years time he would probably be capable of some paid work, in a sheltered environment, for up to 2 half days a week. More problematic is the prospect of finding such work, particularly in the rural area of Northern Ireland in which he lives. I think it unlikely, but not impossible that he would ever graduate to 16 hours paid work a week or that an employer could be found to take him, in paid employment, for 4 half days a week, particularly if one of them was variable. Any employment that he does obtain is likely to be at something close to the minimum wage (likely to be £5.05 an hour in October). In my judgment the appropriate course is to assess a lump sum which will reflect A’s prospect of paid employment in the future. In my judgment the appropriate figure is £15,000. Care provided by A’s family

[111]In Paragraph D of the Claimant’s Amended Schedule of Loss a claim is made in the sum of £ 29,250 for care provided to the claimant by his family and out of pocket expenses. The schedule also contains other claims that cannot be regarded as “care”. Some of the claim is for the cost of travelling to visit A in Wales in July 1992 or in the Woodbourne Clinic or Walsgrave Hospital and elsewhere. Part of it is a claim – at £5 per hour – for the costs of attendance on A. For such cost to be recoverable the care and attendance provided must be over and above that which would be given anyway in the ordinary course of family life: Anita Giamabarone v Sunworld Holiday

(2004) EWCA Civ 158

. There are different formulations, cited in that case, to the effect that the care should be “well beyond the ordinary call of duty” or “distinctly beyond that which is part of the ordinary regime of family life”. But the Court of Appeal did not fasten on any particular phrase. At any rate the care claimed must be noticeably or significantly beyond what would be given in the ordinary course of family life. Past Care

[112]The defendants accept that some of the care given qualifies and that for the period 1992 – 2005 the £5 was an appropriate gross hourly figure “on a commercial basis” but say that that should be reduced by 25% for tax and NIC to £3.75 and then further reduced to £3 to allow for the fact that the rate would have been higher in the later and lower in the earlier years. They also submit that the mileage rate of 40p per mile should in fact be 19.68p because what should be taken is the Running Charge for the vehicle and not the Standing Charge, which includes costs that would have been incurred in any event. 19.68p is the AA figure for 2004 for a vehicle priced between £13,000 and £20,000. They also contend(i) that the claims made for A’s mother to drive him home or to other places is irrecoverable because A had since 2001 either his own car or the use of a car belonging to Carol or her father;

(ii) that the claim in respect of the £25 per week paid by A to Shiels Court is not recoverable because it represents expenses that A would have incurred in any event and is not a claim for care;

(iii) that no sum is recoverable after January 2001 because care was provided by Shiels Court and that the cost of any further care provided by the family has not been reasonably or necessarily incurred and

(iv) that the claim for damage to a car in August 1994 ought reasonably to have been included within A’s insurance cover.

[113]In view of the relatively small size of this element of the claim, I propose to deal with it shortly. The item numbers to which I refer are numbers that I have given to the rows in the table under paragraph D of the Amended Schedule of Loss. My conclusions are as follows:(a) I have no specific evidence as to the appropriate commercial rate per hour, which would have to be discounted to allow for the fact that the care was voluntary. In the light of the fact that in Gimabaranone, where judgment was given at first instance in 2003 a rate of £4.98 was claimed (by reference to certain Local Authority rates) and a lesser figure awarded, it seems to me that a lesser figure should be taken as an average for 1992-2000. In default of any more precise information I propose to take the figure of £4 per hour as an average over the period.

(b) The mileage charge that should be used is the running charge. In default of any other evidence the figure of 19.68 per mile put forward by the defendants is appropriate

(c) Subject to taking the figures of £4 per hour and 19.68p per mile (where relevant), and subject to a further important qualification, items 1 – 23 are recoverable with the exception of items 17, 18 and 21 which do not seem to me to be items of care or otherwise recoverable.

(d) The qualification is that there should, in my view, be a discount applied to take account of the fact that some part of that for which payment is claimed constitutes the giving of general support, love and encouragement rather than what can properly be considered as care or akin to care. It is impossible to take anything other than a broad brush approach. I would, therefore, apply a discount of 20% to the resulting figure in respect of all items save 1, 6, 7, and 9.

(e) As to item 24 A had access to a car when his relationship with Carol lasted (this appears to have been arranged by her father) and A drove it from time to time, although that was a matter of concern to his mother. In the absence of any questioning of A’s mother on the topic I decline to find that the trips made by her which are referred to in the entry for May 2001 – August 2004 could have been made by A. The rates claimed must be adjusted and the 20% discount applied.

(f) Save as to the rates and the claim for her attendance at the course, from which she has derived a commensurate benefit, item 25 is well founded;

(g) As to item 26, the £25 per week towards the cost of supported accommodation is said by the letter of 1st December 2004 from NIAMH to cover “ a social support and environment charge these include social event, transport, heating and lighting”. This is not recoverable. It represents expenditure of a type that A would have incurred in any event.

(h) Subject to taking a rate of £4 item 27 is allowable. Future Care

[114]The claim under this heading is for:(a) the cost for the next 20 years of A’s mother spending 2 hours a week collecting A from and returning him to Shiels Court;

(b) the time that A’s mother will spend attending a course with the claimant for the next 20 years;

(d) the cost of taking the claimant to outpatients every three months.

[115]As to(a) the amount claimed assumes that A’s mother (or a taxi) will take A from Shiels Court, in which he may well no longer be, twice a week to his parents’ house for the next 20 years, by which time his mother will be 87. This seems to me unrealistic. I think, however that something should be allowed under this head for future collections of this type over a period of something like five years; and I propose to allow £3,000. As to

(b) it is even more unrealistic to assume that A’s mother is going to attend a college course with A for the next 20 years. The likelihood, and what should, in any event, happen, is that A will receive assistance from Occupational and Behavioural Therapy, leading, hopefully, to some form of limited work. As to

(c) I regard the cost of Eileen and A’s mother between then spending 4 hours a month attending to A’s affairs, and the cost of £5 per hour, as reasonable. Although I have determined that A is not a patient, that does not mean that he will not require, as I think he will, assistance with his affairs that goes beyond what a parent or sibling would do in the ordinary course of family life. Using a multiplier of 26 I propose to allow the claim in the sum of £ 6,240. A to

(d) this does not appear to me to be a service significantly over and above that which would be rendered anyway in the ordinary course of family life Summary

[116]Accordingly the damages that I award are as follows:(i) General Damages £ 50,000

(ii) Past Loss of Earnings £ 138,450 (Paragraph 26)

(iii) Future Loss of Earnings £ 432,994 (Paragraph 32) Less

(iv) Residual earning capacity (£ 15,000) (Paragraph 110)

(v) Saved utilities (£ 7,000) (Paragraph 106) Plus

(vi) Cognitive Therapy £ 5,000 (Paragraph 83)

(vii) Past Care To be calculated

(viii) Future Care £ 9,240. (Paragraph 115)

[117]I reserve for further consideration, if they cannot be agreed, all questions of interest. A’s use of Cannabis and other drugs

[118]It is apparent from the evidence that A has been a user of cannabis and, to a much lesser extent, other drugs such as ecstasy and amphetamines. There is a reference to his having used cocaine/heroin but I am in doubt as to whether he did so, and, if he did, I think his use was very limited. His use of cannabis appears to have started when he was in the workshop at Plumb’s and he has plainly used it from time to time thereafter. That use has continued even when he was telling doctors that it did not. Thus on 3rd November 2002 at the Ross Thompson Unit Out Patients he denied using cannabis “at present” but on 21st October 2003 he is recorded (6/1558) as having said that he had been smoking cannabis almost daily for the past two years and as requesting reference to the Community Addiction Team. (4/1376 and 3/1053). The medical evidence is that cannabis can induce or contribute to the inducement of a psychotic episode; and that A should stop using it (as he has been told to do), because of its potentiality to cause, or contribute to, the onset of psychotic illness. It is not suggested that the emergence of A’s mental illness was caused by the use of cannabis and I do not find that it was. It is submitted that the court should leave out of account in the assessment of loss, any loss which reflects the likelihood or possibility that A will continue to use cannabis, the use of which is, and is known by A to be, illegal - even if A’s past and likely future indulgence in cannabis is, at least in part, a form of self treatment of his mental illness. The defendants did not identify any particular aspect of loss which was likely to be caused by A’s use of cannabis save to indicate that, if his earning capacity was likely to be reduced because of his taking of cannabis the award of damages should not reflect that. The medical notes do not indicate that A has used cannabis since October 2003.

[119]No part of my assessment of the damages which should be paid to A is intended to contain any element of loss that A may be expected to suffer because he may be expected to take cannabis. It is not, therefore, necessary to decide whether any such loss would have been recoverable. APPENDIX Schizophrenia

[1]ICD -10 F 20 describes schizophrenia thus:

“The schizophrenic disorders are characterised in general by fundamental and characteristic distortions of thinking and perception, and affects that are inappropriate or blunted. Clear consciousness and intellectual capacity are usually maintained, although certain cognitive deficits may evolve in the course of time. The most important psychopathological phenomena include thought echo Hearing your own thoughts ; thought insertion The subject thinks that thoughts are being put directly into his mind by another source or withdrawal The subject thinks that thoughts are being removed from his head. ; thought broadcasting The subject thinks that he can transmit his thoughts. ; delusional perception The subject has a normal perception e.g. that a dog is crossing the road but attaches to it an abnormal meaning (e.g. that he will be King). and delusions of control, influence The subject believes that an external force can interfere with his body or thoughts. or passivity; hallucinatory voices commenting on or discussing the patient in the third person Typically describing what the patient is doing: “He’s moving away …” ; thought disorders The process of thought is broken up and negative symptoms”

. The symptoms described in the last sentence include the so called Schneiderian first rank symptoms, after the psychiatrist – Kurt Schneider – who specified them as symptoms of schizophrenia.

[2]DCR 10 contains a more sophisticated categorisation as follows:

“DCR-10 F20.0 – F20.3 General criteria for paranoid, hebephrenic, catatonic and undifferentiated schizophrenia. G1. Either at least one of the syndromes, symptoms and signs listed under (1) below or at least two of the symptoms and signs listed under (2) should be present for most of the time during an episode of psychotic illness lasting for at least 1 month (or at some time during most of the days). (1) At least one of the following must be present: (a) thought echo, thought insertion or withdrawal, or thought broadcasting; (b) delusions of control, influence or passivity, clearly referred to body or limb movements or specific thoughts, actions or sensations; delusional perception; (c) hallucinatory voices giving a running commentary on the patient’s behaviour; or discussing the patient between themselves, or other types of hallucinatory voices coming from some part of the body; (d) delusions of other kinds that are culturally inappropriate and completely impossible (e.g. being able to control the weather, or being in communication with aliens from another world)”. (2) Or at least two of the following: (a) persistent hallucinations in any modality, when occurring every day for at least 1month, when accompanied by delusions (which may be fleeting or half formed) without clear affective content, or when accompanied by persistent overvalued ideas; (b) neologisms, breaks or interpolations in the train of thought, resulting in incoherence or irrelevant speech; (c) catatonic behaviour, such as excitement, posturing or waxy flexibility, negativism, mutism and stupor; (d) ‘negative’ symptoms such as marked apathy, paucity of speech and blunting or incongruity of emotional responses (it must be clear that these are not due to depression or to neuroleptic medication).”

F20.0 – F20.3 General criteria for paranoid, hebephrenic, catatonic and undifferentiated schizophrenia. G1. Either at least one of the syndromes, symptoms and signs listed under (1) below or at least two of the symptoms and signs listed under (2) should be present for most of the time during an episode of psychotic illness lasting for at least 1 month (or at some time during most of the days). (1) At least one of the following must be present: (a) thought echo, thought insertion or withdrawal, or thought broadcasting; (b) delusions of control, influence or passivity, clearly referred to body or limb movements or specific thoughts, actions or sensations; delusional perception; (c) hallucinatory voices giving a running commentary on the patient’s behaviour; or discussing the patient between themselves, or other types of hallucinatory voices coming from some part of the body; (d) delusions of other kinds that are culturally inappropriate and completely impossible (e.g. being able to control the weather, or being in communication with aliens from another world)”. (2) Or at least two of the following: (a) persistent hallucinations in any modality, when occurring every day for at least 1month, when accompanied by delusions (which may be fleeting or half formed) without clear affective content, or when accompanied by persistent overvalued ideas; (b) neologisms, breaks or interpolations in the train of thought, resulting in incoherence or irrelevant speech; (c) catatonic behaviour, such as excitement, posturing or waxy flexibility, negativism, mutism and stupor; (d) ‘negative’ symptoms such as marked apathy, paucity of speech and blunting or incongruity of emotional responses (it must be clear that these are not due to depression or to neuroleptic medication).”

[3]As is apparent from this description it may well be debatable whether the patient has negative symptoms of schizophrenia or whether the apparent manifestation of such symptoms is attributable to depression or some other cause. In this respect it is notable that typical features of PTSD, from which it is common ground that A suffers, include:

“..episodes of repeated reliving of the trauma in intrusive memories (“flashbacks”), dreams or nightmares, occurring against a background of a sense of ‘numbness’ and emotional blunting, detachment from other people, unresponsiveness to surroundings, anhedonia and avoidance of activities and situations reminiscent of the trauma..”

See F 43.1 of DCR – 10. But this description does not include lack of motivation itself. Acute and transient psychotic disorders

[4]Under category F 23 “Acute and transient psychotic disorders” ICD-10 describes: “A heterogenous group of disorders characterized by acute onset of psychotic symptoms such as delusions, hallucinations and perceptual disturbances, and by the severe disruption of ordinary behaviour. Acute onset is defined as a crescendo development of a clearly abnormal clinical picture in about 2 weeks or less. For these disorders there is no evidence of organic causation. Perplexity and puzzlement are often present but disorientation for time, place and person is not persistent or severe enough to justify a diagnosis of organically caused delirium (F05.-). Complete recovery usually occurs within a few months, often within a few weeks or even days. If the disorder persists, a change in diagnosis will be necessary. The disorder may or may not be associated with acute stress, defined as usually stressful events preceding the onset by 1-2 weeks”.

[5]The DCR- 10 definition provides:

“G1. There is acute onset of delusions, hallucinations, incomprehensible or incoherent speech, or any combination of these. The time interval between the first appearance of any psychotic symptoms and the presentation of the fully developed disorder should not exceed 2 weeks G2. If transient states of perplexity, misidentification or impairment of attention and concentration are present, they do not fulfil the criteria for organically caused clouding of consciousness as specified for F05.-, criterion A. G3. The disorder does not meet the symptomatic criteria for manic episode (F30.-) depressive episode (F32.-), or recurrent depressive disorder (F33.-). G4. There is insufficient evidence of recent psychoactive substance use to fulfil the criteria for intoxication (F1x.0), harmful use (F1x.1), dependence (F1x.2) or withdrawal states (F1x.3 and F1x.4). The continued moderate and largely unchanged use of alcohol or drugs in amounts or with the frequency to which the individual is accustomed does not necessarily rule out the use of F23; this must be decided by clinical judgment and the requirementof the research project in question. Acute polymorphic disorder without symptoms of schizophrenia”

[6]Category F 23.0 is that of “Acute polymorphic psychotic disorder without symptoms of schizophrenia”: “An acute psychotic disorder in which hallucinations, delusions or perceptual disturbances are obvious but markedly variable, changing from day to day or even from hour to hour. Emotional turmoil, with intense transient feelings of happiness or ecstasy, or anxiety and irritability, is also frequently present. The polymorphism and instability are characteristic for the overall clinical picture and the psychotic features do not justify a diagnosis of schizophrenia (F20.-). These disorders often have an abrupt onset, developing rapidly within a few days, and they frequently show a rapid resolution of symptoms, with no recurrence. If the symptoms persist the diagnosis should be changed to persistent delusional disorder (F22.-).

[7]The DCR – 10 definition provides:

“A The general criteria for acute and transient psychotic disorders (F23) must be met. B Symptoms change rapidly in both type and intensity from day to day or within the same day. C Any type of either hallucinations or delusions occur for at least several hours, at any time from the onset of the disorder. D Symptoms from at least two of the following categories occur at the same time: (1) emotional turmoil, characterized by intense feelings of happiness or ecstasy, or overwhelming anxiety or marked irritability; (2) perplexity, or misidentification of people or places; (3) increased or decreased mobility, to a marked degree. E If any of the symptoms listed for schizophrenia (F20.0-F20.3) criteria G1 (1) and (2) are present, they are present only for a minority of the time from the onset, i.e. criterion B of F23.1 is not fulfilled. F The total duration of the disorder does not exceed 3 months” (1) emotional turmoil, characterized by intense feelings of happiness or ecstasy, or overwhelming anxiety or marked irritability; (2) perplexity, or misidentification of people or places; (3) increased or decreased mobility, to a marked degree. F The total duration of the disorder does not exceed 3 months”

[8]In a work on Acute and Transient Psychoses published by the Cambridge University Press the authors observed:

“According to the WHO, a full remission can be achieved within 2 or 3 months, but often even after a few weeks or a few days. Nevertheless, some patients may develop persistent alterations. The present state of knowledge, however, does not allow for a definition of prognostic predictors.”

Acute polymorphic disorder with symptoms of schizophrenia

[9]Category F 23.1. is “Acute polymorphic disorder with symptoms of schizophrenia” which it describes as follows:

“An acute psychotic disorder in which the polymorphic and unstable clinical picture is present, as described in F 23.0; despite this instability, however, some symptoms typical of schizophrenia are also in evidence for the majority of the time. If the schizophrenic symptoms persist the diagnosis should be changed to schizophrenia..”

[10]DCR – 10 provides: “A Criteria A, B, C and D of the acute polymorphic disorder (F23.0) must be met. B Some of the symptoms for the schizophrenia (F20.0-F20.3) must have been present for the majority of the time since the onset of the disorder, although the full criteria need not be met, i.e. at least one of the symptoms in criteria G1(1) – G1

(2) C The symptoms of schizophrenia in criterion B above do not persist for more than a month”.

A v The Archbishop of Birmingham [2005] EWHC 1361 (QB)

Conclusions

Cited in 2 later judgments