A (a child) v B Hospitals NHS Trust [2006] EWHC 1178 (QB)

Case No TLQ/05/0641[2006] EWHC 1178 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 26 th May 2006
Before
MR JUSTICE LLOYD JONES
Between
AClaimant(a child suing by his fatherClaimantand litigation friendClaimantC)ClaimantB HOSPITALS NHS TRUSTDefendant
Ms. E.A. Gumbel QC and Mr. H. Witcomb (instructed by Wolferstans) for ClaimantMr. Stephen Miller QC (instructed by Bevan Brittan) for DefendantHearing Hearing dates: 26 th, 27 th 28 th April 2006 and 9 th May 2006
Judgment
[1]This is a clinical negligence claim which arises out of the events which occurred during the birth of the Claimant A, at the Defendant’s hospital in 1999.[2]During his mother’s labour A suffered hypoxic ischaemic damage, and, as a result, developed a neo-natal encephalopathy. He suffered catastrophic injuries. His condition has been described, variously, by different experts as dystonic athetoid quadriplegic cerebral palsy and as dyskinetic tetraplegic cerebral palsy.[3]The Claimant sues by his father and litigation friend C. Due to the severity of the injuries which he has suffered A lacks capacity under the Mental Health Act1983 and CPR Part 21. Accordingly he was certified as a patient of the Court of Protection in 2003. The paediatric neurologists Dr. Richard Miles and Dr. Lewis Rosenbloom, instructed by the Claimant and the Defendant respectively, have agreed that the Claimant will be a patient and will be unable to mange his affairs as an adult.[4]This action was commenced in 2004.Liability for the Claimant’s injuries was admitted in the Defence. As a result, the hearing before me has been concerned solely with issues relating to quantum of damages. Furthermore, the parties have been able to reach agreement on all heads of claim other than the cost of future care. The present condition of the Claimant.[5]It is common ground between the parties that A suffers from the following conditions.a. Dystonia, variation in muscle tone and involuntary athetoid movements.b. Major difficulties with bulbar function and epiglottic malacia which causes speech difficulties and renders him unable to swallow.c. Double incontinence, although there is some possibility of continence training in the future.d. Epilepsy, although the experts in paediatric neurology are agreed that this is easily controlled.[6]Despite the severity of his condition, A has significant retained cognitive function. However, the experts in paediatric neurology agree that he will always function as a child with severe learning impairment. At his current age of six and half years he understands a number of simple phrases and conversational speech. He has an understanding of cause and effect. He has learnt colours and can count up to five. He co-operates with commands. He has visual and aural functions although it is, as yet, unclear to what extent these may be impaired.[7]The parties also agree that A is incapable of carrying out independently any of the activities of daily living. He is wheelchair bound. He requires 24 hour care and is entirely reliant on others for all his needs. This will remain the position for the rest of his life.[8]When placed on the floor he is able to roll over and be very active, moving purposefully from one side of the room to the other. This is an activity which gives him considerable pleasure. Dr. Miles, the expert in paediatric neurology instructed by the Claimant, notes that A has made more progress in this regard than he would have anticipated at the date of his first examination in 2002. He considers the extent of a child’s mobility to be a very significant factor in the determination of life expectation.[9]Up to the age of approximately two years A suffered from chest infections. However, since that age they have been much less frequent. Since the age of about two years, he has been in relatively good health, considering his disabilities. He has, however, suffered from middle ear infections.[10]His inability to swallow requires that he is fed by gastrostomy (tube feeding). Food is administered at set times during the day and at night while he is asleep. A further consequence of his inability to swallow is the necessity of the regular clearance of secretions from his airways.[11]A’s parents are C and D. They met in their country of origin in South East Asia, and were married there in 1998. Following their marriage they came to this country where C had already obtained a Masters Degree at a university in this country. He then began a course of study leading to a PhD . D had been an opera singer and music teacher in her country of origin. They had no income and were supported financially by the parents of C. He is their only son. It was while C and D were living in this country that A was born in 1999. More recently, C has completed his PhD and has obtained a permanent lectureship at a university here. A second child, a daughter, was born to C and D in 2005.[12]In the early years A was cared for by his parents with very little outside support. However, following the admission of liability and the making of an interim payment, new arrangements were put in place with effect from about April 2005. C and D were able to engage Mrs. Amanda Dowdney as a case manager and with her assistance a care regime has been put in place and has operated since April 2005. A is now cared for by a team of seven carers comprising one registered nurse, four senior carers and two care assistants. At night time A has one waking carer for ten hours each night. The night shift is from 9.30pm to 7.30am.[13]In term time on week days A is cared for by his parents from the departure of the night carer at 7.30am until he leaves for school at 8.45am. In the mornings his parents perform the roles of washing, dressing, feeding, putting him in his buggy and toileting. This is described by C as the busiest period of the day. On weekdays during term time two carers attend, each for slightly over five hours. They attend mainly in the late afternoon and evening after A’s return from school at approximately 3.30pm. There are generally two carers present although there are short periods of about half an hour to an hour on his return from school and before the arrival of the night carer when there are is only one carer present.[14]In daytime out of term time two carers attend for 14 hours each per day.[15]At weekends during the daytime A is cared for by two carers, each working a shift of nine and a half hours per day. On Saturdays he is often taken out in his buggy by his father. On Sundays he is taken to church by his parents. I was told that one or more of his carers attend the same church and so they are present to assist him, although they are not paid for this.[16]The current arrangements are clearly working well and to the satisfaction of C and D. This has had an important influence on the approach of Mrs. Daykin, the expert occupational therapist who gave evidence on behalf of the Claimant. She very frankly accepts that she has been impressed by the arrangements which have been put in place to care for A since April 2005 and that this fact, coupled with the improvement it has brought about in the lives of C and D, has led her to adopt it as the basis of her proposed scheme for the future care of A. In the course of her evidence she said that she saw the scheme working so well that it became the basis of her report, but that if she had considered that an item was totally unreasonable she would not have adopted it. However, in relation to this care element of the claim, the court is required to answer the question “What is required to meet the Claimant’s reasonable needs?” (Sowden v. Lodge [2005] 1 WLR 2156 per Longmore L.J. at para. 94.) The current arrangements are, no doubt, highly relevant in demonstrating the efficacy of provision which may be made. However, as the Defendant points out, the extensive provision put in place by A’s parents cannot be allowed to pre-empt the issue of what is required to meet his reasonable needs. (Campbell v. Mylchreest [1999] PIQR Q17 at Q 23-4.) Areas of agreement.[17]The parties have reached agreement on the following issues. I have approved the agreement reached on these issues as in the best interests of A.(1) The award of compensation to the Claimant for all items other than future care is agreed as £2,516,385.00.(2) The Claimant’s life expectation is to be assumed to be to the age of 42.5 years i.e. 36 years from the date of the trial.(3) The full life multiplier for 36 years using Ogden Table 28 and a 2.5% discount rate is 23.85.(4) The Claimant requires 24 hour care for the remainder of his life.(5) Care costs, with the exception of nursing supervision, should be costed at an average hourly cost of £11.50 together with add-on costs.(6) The cost of care from the age of 19 years should be assessed so as to apply for the remainder of the Claimant’s life. The regime for life should be provided by directly employed commercial carers to provide care in the Claimant’s own home.[18]During the hearing before me the parties also reached agreement on issues relating to night care.(1) There had been an issue between the parties as to whether A will continue to require waking night care. In particular, Mrs. Daykin, the expert occupational therapist on behalf of the Claimant maintained that the need to suction oral secretions would require continuing night care throughout A’s life. Indeed, in that phase of the scheme for future care proposed on behalf of the Claimant which relates to his life from the age of 19 years, provision was initially made for two waking night-time carers.(2) However, Dr. Miles and Dr. Rosenbloom agreed that waking night care would not be needed in the long term. Indeed, they considered that having a waking night carer for an individual in the position of A would be more likely to enhance rather than ameliorate a disturbed sleep pattern. They also considered that it was appropriate to begin to modify the current night care regime with respect to the frequent suctioning and gastrostomy feeding by pump and also the frequency of the attention given to A. Accordingly, they concluded that waking night care could be withdrawn as soon as two years from now or as long as six years from now. Dr. Miles considered the latter the more likely.(3) In the light of this agreed view of the consultant neurologists, the parties agreed, at an early stage of the hearing before me, that I should proceed on the basis that A would require waking night care for a period of four years from the present date and not thereafter. I accept this conclusion which accords with the views of the experts.(4) Dr. Miles and Dr. Rosenbloom both considered that it is likely that, even after A has reached a stage at which he no longer requires waking night care, there will be a number of weeks in each year when A will be unwell and, as a result, a waking night carer will be required. They assessed this period as some 4 to 6 weeks per year, an assessment which I am content to adopt. Provision should be included for a waking night carer for 5 weeks per annum.(5) The appropriate rate of remuneration for waking and sleep-in night care has also been resolved by agreement between the parties during the course of the hearing. The parties have agreed that the remuneration of carers should be calculated by reference to an average rate of £11.50 per hour. It is agreed that this average rate should be applied in calculating the cost of both daytime and night-time care. The parties have also agreed that remuneration of night-time waking carers should be calculated at the average rate of £11.50 for the 10 hours which that shift occupies, whereas remuneration of night-time sleeping carers should be calculated at that rate but for only 6 of the 10 hours which that shift occupies. As a result, the cost of waking night care to age 10.5 was agreed at £805 per week and the cost of sleep-in night care was agreed at £483 per week.[19]The parties have identified the following issues which remain for decision.(1) The phases by reference to which annual costs of care should be assessed between the ages of 6.5 and 19 years.(2) Whether the Claimant at present requires two carers to achieve safe transfers for the Claimant and the care team and a quality of life that allows for a reasonable choice and variety of activities.(3) Whether the need for two carers will remain constant during the Claimant’s life or whether it will either increase or decrease in the future.(4) The extent to which the cost of commercial care should be reduced by utilising parental care rather than commercial care up to his nineteenth birthday.(5) The extent to which the parents should be paid for such contribution that the Court considers they are required to make and the amount of such remuneration.(6) The extent to which the Claimant will continue to receive care from the local authority and whether this will be provided free of charge.(7) Whether it is reasonable to make provision for nursing supervision of the care team, and, if so, for how many hours and at what rate.(8) Whether it is reasonable to hold monthly liaison meetings attended by the whole carer team.(9) The basis on which add-on costs, i.e. those costs in addition to the costs of the basic care regime, should be calculated.(10) What provision should be made for a carer contingency sum.(11) The form of the award, i.e. whether periodical payments or a conventional lump sum is the more appropriate form of award.[20]The parties and their respective care experts have produced proposals for the future care of A by reference to different phases in his life. Both parties accept that there is no magic about either approach. There are no natural educational milestones here. A’s nineteenth birthday is clearly an important milestone as he will thereafter be living notionally independently of his parents, although remaining in the same home. Following the agreement in relation to night care, described above, the age of 10.5 is a natural break. The Claimant’s approach, as revised, has the advantage of taking this as a transition point. Although it has the disadvantage that its first phase lasts only eighteen months, it is nevertheless convenient to adopt it for the purposes of this judgment. Accordingly, I shall refer to the following phases. Phase 1 To age 8. Phase 2 Age 8 to Age 10.5. Phase 3 Age 10.5 to Age 14. Phase 4 Age 14 to Age 19. Phase 5 From Age 19.[21]On behalf of the Claimant it is maintained that his condition is so severe that he requires the care of two carers in daytime. This is justified by Mrs. Daykin, the care expert instructed on behalf of the Claimant, on the basis of the difficulty of transferring A and on the basis of his vulnerability. In this regard she referred in particular to his oral secretions and his epilepsy. More generally, Mrs. Daykin considers that the degree of A’s incapacity is so great that his proper care requires two daytime carers. Indeed, it is the opinion of Mrs.Daykin that “this child needs two carers for every waking moment.” The Defendant maintains that A’s condition does not require the attendance of two carers at all times.[22]I am unable to accept that A’s epilepsy is a particularly material consideration when determining the level of care which is appropriate for him. It was common ground between the consultant neurologists that the epilepsy can probably be controlled by medication. The Defendant’s expert, Dr. Lewis Rosenbloom, considered that it was probable that A will continue to be susceptible to an occasional epileptic convulsion. However, in his view, it was probable that this could be treated by anti-convulsant therapy and, therefore, it was unlikely that prolonged convulsions would occur. His view, which was not challenged on behalf of the Claimant, was that A’s epilepsy is not a significant feature in this case. Mrs. Daykin, in her evidence, referred to the fact that in October 2005 A had suffered major seizures during sleep on two occasions. However, in the light of Dr. Rosenbloom’s evidence, she felt bound to accept that epilepsy does not have a bearing on the care issues in this case.[23]Similarly, it appears to me that the problem of oral secretions has little bearing on the question whether two carers are required at all times. This condition requires frequent suctioning but this is a procedure which is easily carried out by one carer. Moreover, the medical evidence is that with the use of various therapies and techniques there may in future be some improvement so far as the secretions are concerned.[24]To my mind, the issue of whether two daytime carers are required turns, principally, on A’s needs in relation to transfers. It is clear that he currently requires and will continue to require for the rest of his life a number of transfers each day.[25]On behalf of the Claimant it is said that the safe transfer of A will require the attendance of two carers. Accordingly it is said that two carers will have to be available at most times, in order that A can be transferred whenever this is needed, as opposed to having to wait for the next carer to come on duty. Moreover, it is said that if the carers are to be professionals, the manual handling regulations would require that transfers are effected by two carers in order to protect the safety of the carers. If these contentions are correct, this would obviously have a major impact on the cost of future care.[26]Mrs. Amanda Dowdney, the Claimant’s Case Manager, explained that because he is a very lively boy A needs to be moved constantly. At present, in the mornings he has to be transferred from his bed, which is currently at floor level, to the bath. He then has to be transferred to a plinth to be dressed and then to his wheelchair. At various points in the day he has to be transferred to a different chair and back to the wheelchair. He is transferred to and from the floor so that he can roll around. He also has to be transferred to and from the standing frame. In addition he has to be transferred to the plinth each time it is necessary to change his pads or nappies. Any attempt at potty training would require two further transfers. At bedtime there is a final transfer to his bed.[27]Mrs. Wendy Daykin and Mrs. Gillian Conradie, the care experts instructed on behalf of the Claimant and the Defendant, respectively, agree that A, who has now reached the weight of 22 kilos, has reached the point at which all future transfers must be carried out with the use of a hoist.[28]Dr. Miles and Dr. Rosenbloom considered at their meeting whether two carers would be required for all manual transfers. Their agreed answer was as follows:
“It is not our understanding that two carers will be required for all manual transfers if these are with the aid of hoisting. We understand and accept that two carers are likely to be needed for some or many transfers but would defer to the care experts on this point.”
[29]Mrs. Daykin’s opinion is that it is very difficult for one person to transfer A using a hoist and that to attempt to do so would put him and the carer in a vulnerable position so far as the risk of accidental damage is concerned. She identified a particular problem in the case of children with severe athetosis in that the constant involuntary movement means that there are difficulties in putting the sling around the body and in attaching the sling to the framework. As a result she considered that all children with severe athetosis require two carers for lifting with a hoist. Similarly she considered that adults with severe athetosis require two carers and mechanical hoisting and pointed out that this was the consistent practice of SCOPE in such cases.[30]Mrs. Conradie takes the general view that one carer with access to the appropriate equipment can carry out these transfers of A safely and effectively. However, she accepts that transfers for personal care, which she restricts to bathing, and transfers to and from the standing frame cannot be carried out by one carer. So far as the other transfers are concerned, she agrees that all future transfers of A must be carried out with the use of a hoist. She considers that it is perfectly possible for one person to carry out most transfers using the hoist. As a result, in her proposals she has made provision for the attendance of a single carer supplemented by the parental contribution to care. However, from the age of 15 she makes provision for the attendance of a second carer for two hours in the early morning on schooldays. Moreover, Mrs. Conradie accepts that from the age of 19 A should be provided with a second carer for four hours a day, for personal care and transfers, distributed between the early morning and later in the day.[31]A Manual Handling Risk Assessment has been produced in this case. In her report dated 15th November 2004 Mrs. Kate Sheehan included the following recommendations in relation to what she considered to be A’s immediate needs at that date. “1. That two carers are required for all tasks involving personal care. This is due to A being on the very edge of the weight limits recommended by the HSE regulations (also in the guidance to the Manual Handling Regulations 1992, revised 1998). It is also my opinion that due to the complex care in relation to A’s lack of swallowing reflex and history of seizures that he is very vulnerable, he needs constant monitoring. 2. That one carer should in normal circumstances be able to manage his care during the night time period, as no manual handling is required, only suction. 3. That two carers will be required for using the standing frame.”[32]The Manual Handling Risk Assessment is now some eighteen months out of date and since it was produced A has grown and developed considerably. Nevertheless, it contains an expert’s view on the requirements for moving A. The parties were in dispute as to the true meaning of the passage quoted above. On behalf of the Defendant it was accepted that two carers would be required for transfers for tasks involving personal care and transfers to the standing frame. However, Mrs. Conradie maintained that the reference to personal care should be read as limited to bathing and that two people were not needed for transfers for other purposes such as changing, toileting or dressing A. I am unable to accept this reading. Although the matter could have been more clearly expressed, Mrs. Sheehan appears to be of the view that two carers are required for all transfers during the day, whereas only one carer is required at night because no manual handling is required. Moreover, contrary to the opinion expressed by Mrs. Conradie, I find it difficult to identify any basis on which one could distinguish between transfers for different types of personal care, or between transfers for physical care and other purposes. It is common ground that all transfers from now on will have to be effected with the use of a hoist. There is considerable evidence that this is at present a very difficult process.[33]C gave evidence as to the difficulties currently encountered in moving A. He described A’s involuntary movements as very unpredictable, very strong at times and getting stronger. They involve the throwing up of arms and legs, sometimes individually and sometimes at the same time. He said that he has to be careful when holding him to avoid injury from the involuntary movement of all four limbs. He said that his head control is better than before although not perfect. Transferring him from his chair to the floor is not a problem because he likes to be on the floor. However, when there is any attempt to transfer him from the floor to a chair or to transfer him to the standing frame, he shows strong resistance. Currently, two carers are used for transfers and sometimes, when A resists by pushing hard, they call C in because they cannot cope. C described how, when resisting being moved, A arches his back and goes completely stiff. When this happens C leaves him for a few minutes and then tries again. In addition to the transfers described above, C said that sometimes he has to help A to use his bowels by holding him from behind. C also told us that he has injured his back by lifting and holding A.[34]Dr. Miles confirmed that C’s description of A’s involuntary movements was consistent with his examination. He described them as “pronounced”. They involved a flinging out of arms and legs which made it more difficult to move him than in the case of the more spastic type of cerebral palsy.[35]E, a registered nurse who cares for A at night states in her witness statement that it is extremely difficult to get A into his chair in the morning because of his lack of control over his limbs. According to her, as he is getting heavier this is getting even more difficult. She believes that he needs a hoist but adds that even with the use of a hoist she does not think that she will be able to manage to get him into this by herself as he has no control over his limbs and will not be able to co-operate with getting into the hoist.[36]Some support for these accounts of the Claimant’s current needs is to be found in his needs at school. The table of “support needed” appended to the Local Authority Annual Review Meeting held on 1st November 2005 records that two people are needed for assistance with toileting at least three times daily. It states that two people are required to help transfer A to and from his standing frame. It is significant that here express reference is made to involuntary movements. It also records that two people are required for hoisting assistance in the sensory room. So far as “PE – soft play” is concerned, it states that two adults are need for lifting onto the mat and returning to the chair. It also includes the following note:
“All transfers. 2 adults needed. Very difficult to re-seat due to involuntary movements.”
Mrs. Dowdney gave evidence that she had visited A’s school and the transfers of A which she had observed there had always been carried out by two people. It was her recollection that these transfers had not been carried out with the use of a hoist. However, it appears from the records that a hoist was used in the sensory room and that two people were required for this operation.[37]According to Mrs. Dowdney, A does not enjoy being put in a hoist. When a hoist is used to transfer him it requires two people to get him into the hoist, because of his athetoid movements and because of his resistance. It is often extremely difficult to move him and on occasions it has taken three people to get him into the hoist. Similarly, Mrs. Daykin gave evidence that on her visits to the Claimant’s home she had observed that he did not like being hoisted. She considered that when you are not in control of your limbs it can be very frightening to be hoisted. Mrs. Conradie had not seen A hoisted.[38]I accept the evidence of C, E, Mrs. Daykin and Mrs. Dowdney as to the extreme difficulty which is currently encountered in seeking to transfer A. I consider that, as a result, it is not safe for either A or the carer for this to be attempted by a single carer. I am satisfied that the current need for two carers to effect transfers of A is clearly made out. The combination of his voluntary and involuntary movements and his size and weight make it essential that two carers carry out the operation.[39]During the hearing both parties examined in depth the question whether the difficulties encountered in transferring A might, in future, be reduced. Indeed, it was clear that Mrs. Conradie’s opinion was based in substantial part on her view that the problems posed by A’s movements will reduce as he grows older.(1) Dr. Miles and Dr. Rosenbloom concurred in their conclusion that the Claimant is unlikely to develop in future the ability to assist with transfers.(2) It was suggested to the consultant neurologists that, with maturity, A might employ less resistance to unwanted attempts to transfer him. In this regard, Dr. Miles referred to the fact that A does have preserved intelligence and there is accordingly a hope that his understanding will improve. He referred to his hope and expectation that A’s voluntary resistance will reduce in time and make handling easier.(3) The consultant neurologists gave oral evidence as to the extent to which an improvement in A’s involuntary movements might be expected. Dr. Miles considered that cases are very variable. In some cases involuntary movements grow more and more as the person grows older whereas in others they improve. It was his view that involuntary movement cannot be improved by training or by any medication. He also pointed out that as A grows bigger and stronger the involuntary movements will become the more difficult to handle. Dr. Rosenbloom agreed with Dr. Miles that these athetoid movements may get better or worse. He agreed that progress in treating involuntary movement with medication had generally been very disappointing. He differed from Dr. Miles, however, in that he considered that, by and large, techniques can be used to reduce involuntary movements. While this was not a cure, it could sometimes permit a transient degree of control. Nevertheless, he agreed with Dr.Miles that it was reasonable to plan for the future on the basis that such involuntary movements would continue.(4) Mrs. Conradie’s opinion that some, but not all, transfers may be effected safely by one carer is based in substantial part on the view that the problems posed by A’s movements will reduce as he gets older. Indeed, she stated in evidence that in her experience involuntary athetoid movements “dampened down” over time. However, the expert medical evidence does not support this view.[40]On the basis of this evidence I conclude that there is some prospect that with growing understanding A may be persuaded not to resist at least some of the transfers as strongly as he does at the moment. This will, however, depend on the degree of cognitive ability enjoyed by A as he matures. The expert neurologists are agreed that he has significant impairment of cognition and will continue to function as a child with severe learning impairment. So far as involuntary movements are concerned, while it is possible, it cannot be considered likely that any significant improvement in involuntary movements will be achieved. Dr. Rosenbloom explained that control by medication is effective only in 10% to 20% of cases. The transient degree of control which may be achieved by strategies must depend on the individual case. Moreover, I consider that any improvement as a result of a reduction in voluntary resistance is likely to be countered by the effect of A’s growing weight and strength on his involuntary movements.[41]The parties also addressed the possibility that in future the number of transfers required each day might be reduced. In this regard, it is relevant that Dr. Miles and Dr. Rosenbloom agreed that it is possible that A is capable of being toilet trained. However, they considered this was improbable. In any event, if he were to become toilet trained, it would be necessary to transfer him to and from a commode, as required. Accordingly, it is reasonable to proceed on the basis that it will be necessary for A to be transferred to and from a plinth throughout his life at various points of the day, for the replacement of nappies and pads and for a change of soiled clothing.[42]The agreed report of Wendy Murphy, a physiotherapist jointly instructed on behalf of the Claimant and the Defendant, is of particular relevance in relation to this issue.(1) Mrs. Murphy concludes that A suffers from asymmetry of posture and that this, coupled with an inability to shift out of damaging positions at will exposes him to a risk of developing contracture or stretching of the soft tissues that act on the joints, resulting in established deformity, and to a risk of sustaining pressure sores or abrasions. (Contrary to the view expressed by Mrs. Conradie, I do not accept that a specialised type of seating alone would be sufficient to avoid the risk of pressure sores.)(2) It is the recommendation of Mrs. Murphy that A should use a standing frame to control his posture in supported standing and to maximise function. He currently uses such a frame. She considers that he should continue to use such a frame until the end of his teenage years. This will necessitate transfers to and from the frame during that period. It is also her opinion that he will need regular changes of position and posture throughout the day and that it is likely that standing has medical and physical benefits.(3) Mrs. Murphy concludes: “Physiotherapeutic intervention should be directed towards delivering high quality postural management, i.e. regular stretching and exercise and careful positioning, to facilitate optimal support comfort, and the facilitation of functional movement, albeit limited. Appropriate management should be continued throughout every 24 hours, supervised by physiotherapists and administered by well taught carers, who are monitored by physiotherapists.”(4) On the basis of this evidence I conclude that A has a medical requirement to be transferred regularly and frequently throughout each day and that this need will continue throughout his life.[43]In these circumstances I see no possibility that the number of transfers required each day may be significantly reduced in the future.[44]Moreover, I consider that any attempt to reduce the number of transfers would seriously damage A’s quality of life and would therefore be unreasonable. It will be necessary for A to be transferred for his health and comfort throughout each day. In particular, as long as he remains incontinent it will be necessary to transfer him to clean him, change his nappies and pads and to replace soiled clothing. In this regard it is significant that Mrs. Conradie accepts that two carers should be provided at certain times of day in order to permit those transfers which, in her view, require two carers. Moreover, she also accepts that as A grows older there will be an increased need for double care, in part because of the need for two carers to carry out transfers, and she makes provision for this in her proposals. Thus, when he becomes an adult Mrs. Conradie’s proposal allows four hours of “double up care” per day so as to have two carers present to carry out transfers. For reasons set out above, I am unable to accept the distinction she seeks to draw between different categories of transfers. Moreover, in any event, whereas certain transfers can be planned to take place at particular times, this will not always be the case. I consider that this makes it necessary that two carers should be available throughout the day so that transfers can be carried out immediately, as and when required.[45]A subsidiary issue which arose in this context was whether difficulty is likely to be experienced in obtaining the services of a second carer for a very short period of time, e.g. an hour or two hours, as proposed by Mrs. Conradie. To the extent that it may be relevant, I accept the view of Mrs. Daykin that this may prove difficult. However, it will be necessary to obtain the services of carers for such short periods in the mornings once, as is proposed, C and D cease to bear responsibility for A’s morning care.[46]The question of the future role of C and D in the care of their son is addressed later in this judgment. However, it is necessary to refer at this point to the suggestion by the Defendant that in situations in which a second carer is needed to assist in a transfer when only one carer is on duty, C or D would be able to perform that role. I accept that in circumstances where one of the parents is “on duty” in the sense of providing care by arrangement it would not be necessary or reasonable for two commercial carers to be present. In such circumstances a single professional carer and one parent could be expected to perform the transfer. However, I do not consider it reasonable to make provision for one professional carer, with a second in attendance only at certain periods of the day, on the basis that C or D can be relied upon to be available to assist, thereby permitting transfers to be carried out in a safe and timely manner. The precise time at which such assistance will be required is, from the nature of A’s needs, unpredictable. His parents cannot reasonably be expected to be on call to perform this function in daytime whenever only one professional carer is on duty.[47]I note that under the scheme for future care proposed on behalf of the Claimant, the effect of the remuneration of C and D for certain identified periods is to require the Defendant to meet the cost of three carers simultaneously. In my judgement, A does not require the attention of three carers at any given time. If the parents are to be remunerated in respect of the care they provide at specific times, the Defendant cannot fairly be required to pay for two carers in respect of the same period. I consider that this is unreasonable and should not be allowed.[48]I have, therefore, come to the conclusion that the provision for the future care of A reasonably requires that he should be attended by two carers during those parts of the daytime which he spends at home. I have arrived at this conclusion on the basis of A’s needs in relation to transfers. However, it should not be thought that a second carer would be required to do no more than assist in such transfers. The totality of A’s care needs are very high indeed. As Mrs. Daykin put it in her evidence, “He can’t do anything without help, except roll about on the floor.”[49]On this basis I consider that it is reasonable for provision to be made as follows: Up to age 19. Weekdays in term time a.m. 1.5 hours x 2 per day This allows for double cover from the departure of the night carer at 7.30 a.m. until A’s departure for school at 8.45 a.m. p.m. 5.13 hours x 2 per day Weekdays in holiday time 14 hours x 2 per day Weekends 12 hours x 2 per day This allows for periods on Saturdays and Sundays when A is taken out and taken to church by his parents. This is time that would be spent by these parents with their children in any event. From age 19. Daytime care 14 hours x 2 per day Not all of these hours will be purchased commercially. Some, up to the age of 19, will be provided by A’s parents. This issue is considered further below. Currently 4 hours per week is provided free of charge by the local authority. There is an issue as to whether this will continue to be provided free of charge. The final calculation will have to take account of my conclusions on this point which are set out below. The extent to which the cost of commercial care should be reduced by utilising parental care rather than commercial care up to his nineteenth birthday.[50]For the first five and a half years of A’s life he was cared for by his parents alone with virtually no assistance. I am bound to express my admiration for the way in which they struggled to provide a high level of care for A at considerable cost to the quality of their own lives. Since the receipt of an interim payment they have set up, with the assistance of a case manager, an elaborate system of professional care for A which I have described above. His parents continue to devote a substantial number of hours to caring for A. The Claimant now seeks damages on the basis that such a system of professional care will continue for the rest of his life.[51]On behalf of the Claimant it is said that C and D will, in the immediate future, continue to provide personally the same number of hours caring for A as they currently provide. However, they have indicated that they wish to return to the role of being parents and not carers. They propose therefore to reduce the number of hours of care they provide personally once A reaches his eighth birthday.[52]The Claimant’s position in relation to the proposed future parental contribution to care changed during the course of the hearing. In her final submissions, Ms. Gumbel QC proposed that the future parental contribution to care should be taken to be as follows and that the number of commercially purchased hours of care should be reduced accordingly: Phase 1 38 hours per week. Phase 2 7 hours per week. Phase 3 7 hours per week. Phase 4 7 hours per week. At the same time she accepted that the parents should be paid for only 31 hours per week in Phase 1 and should not be paid for care provided thereafter.[53]I am satisfied that C and D will use professional care to the extent they indicate. C has been very closely involved in setting up the present care regime. It was clear from the evidence of C, which I accept, that he and his wife wish to continue using professional care and want to return to the role of being parents to A and their daughter. As C put it in his evidence, “I want to stay involved in my son’s care, but not in terms of physical labour. I have my full time job. I have other things to do.”[54]On behalf of the Defendant it is said that the Claimant’s parents can be expected to perform a caring role which includes the provision of physical care, over and above that which they would provide for a normal child, for which they should be compensated. Indeed, Mrs. Conradie’s proposals for the future care of A included an increased role for his parents in later Phases. Her proposals for Phases 3 and 4 include provision for payment for a total of 21 hours of parental care each week. For reasons set out above, I consider that C and D prefer that after the current phase such physical care should be provided by professional carers. Moreover, I consider that they are reasonably entitled to take that view. C has a demanding and responsible job . D, has another small child to care for. A is now too heavy for either of his parents to lift; both parents have suffered back problems. The family has benefited from the professional care regime which has been put in place and which appears to be working well.[55]In all the circumstances, I consider that the figures put forward by Ms. Gumbel in her closing submissions provide a fair and reasonable basis on which to bring into account the parental contribution to A’s care.[56]So far as the rate of remuneration for the care provided by the parents during Phase 1 is concerned, it was the submission of the Claimant that they should be paid at an enhanced rate to take account of the anti-social hours at which some of the care is provided. In this regard, I note that in her original report in July 2004 Mrs. Daykin used the basic rate. It was only in her report of November 2005 that she changed the rate. She claimed that this was an executive decision within the organisation for which she worked, Jacqueline Webb and Associates, and that one reason for this decision was that the courts often discounted the basic rate to reflect the gratuitous nature of the care provided. (Evans v. Pontypridd Roofing Ltd. [2002] PIQR 5, at paras. 24, 78.)[57]As Mr. Miller QC, for the Defendant, points out, it has been customary to value parental care by reference to the basic Spinal Point 8 Salary Grade recommended for Local Government Services for Home Help. This is currently £6.25 per hour. The basic rate is adopted because of the fictional nature of the employment. The fact that the courts usually discount the award to take account of the fact that National Insurance and tax are not payable is not, to my mind, a valid reason for claiming at a higher rate. In any event, in the present case the Defendant does not argue for any such discount. In all the circumstances, I consider that the basic Spinal Point 8 Salary Grade is fair and appropriate. The extent to which the Claimant will continue to receive care from the local authority and whether this will be provided free of charge.[58]The Claimant currently receives four hours of care each week, provided free of charge by the local authority through its Social Services Department. The question arises whether following an award of damages to the Claimant this, or any other period of care, will continue to be provided by the local authority free of charge. The Defendant maintains that it should be assumed that it will continue to be provided free of charge until the Claimant reaches the age of 19 years and that, accordingly, that period of care can be deducted from the total number of hours of care which will have to be provided by commercial carers or by A’s parents.[59]It was common ground between the parties that the burden lies on the Defendant to establish that such care will continue to be provided free of charge. (Sowden v. Lodge [2005] 1 WLR 2129 per Longmore L.J. at p. 2157.)[60]An approach to Mr. Hopkins of the local authority received the following response:
“Mr. Hopkins said that A’s entitlement to the provision of care would be means tested after the award of damages had been made. Mr. Hopkins said that after the award of damages had been made, Social Services would have to look very carefully at the provision of all services including occupational therapy equipment. He said that in the future if services and equipment were assessed as needed then A would be required to pay for it.”
This position taken by the local authority appears to be consistent with the decision of the Court of Appeal in R. (Spink) v. London Borough of Wandsworth [2005] EWCA Civ. 302. The local authority has a discretion in relation to any child as to whether and, if so, how it might provide for that child so that the power may or may not be exercised in any given year depending on the local authority’s resources. If the power is exercised so as to provide care, the local authority is entitled to charge for the care pursuant to sections 17 and 29, Children Act 1989.[61]Once A becomes an adult any provision by the local authority for his care would be made pursuant to section 29, National Assistance Act 1948. Whereas personal injury trusts and compensation for personal injuries administered by the court are to be disregarded for the purposes of section 22 of that Act, the charging provision for accommodation provided under section 21 (Sowden v. Lodge per Pill L.J. at paragraph 7). That is not the case so far as concerns care provided pursuant to section 29 (Freeman v. Lockett [2006] EWHC 102 per Tomlinson J. at paragraph 38.)[62]The Defendant has not produced evidence that care in future will be provided by the local authority. I find myself in the same position as Tomlinson J. in Freeman v. Lockett [2006] EWHC 102 in that there is no principled basis on which I am able to estimate what provision would be made by the local authority in the future. In any event, I consider that the local authority would be entitled to charge and would charge for any care made available following the award of damages. Accordingly, even if care were to be provided by the local authority, it could only have a bearing on the rate at which the Defendant should reimburse the Claimant.[63]In these circumstances, no adjustment is to be made to the calculation of the cost of care on the basis that care will be provided by the local authority.[64]At one point it appeared that the Defendant’s care expert, Mrs. Conradie, was maintaining that the local NHS Primary Care Trust was under an obligation to provide assistance due to A’s need for suctioning. However, since it is the Defendant’s case (and the agreed view of the experts in neurology) that A has no need for nursing care, it is difficult to see how such an obligation could arise. In the event, the point was not maintained. Whether it is reasonable to make provision for nursing supervision of the care team, and, if so, how many hours and at what rate.[65]Under the current arrangements, which were set up in April 2005, a State registered nurse, E, performs 10 hours night duty each week. She is, in effect, the leader of the team of carers. Although she is the only member of the team who has a nursing qualification in the United Kingdom, other members have nursing qualifications in their country of origin.[66]The question has arisen as to what extent, if at all, it will be reasonable in future to have a qualified nurse as a member of the team.[67]In her reports Mrs. Daykin proposed that the team should include one nurse who would perform a “hands on” role as under the current arrangements. She maintained that she had not included this provision simply because it is currently provided. However, in the light of the agreed conclusion of the consultant paediatric neurologists, she no longer maintains that such provision is reasonably required.[68]Dr. Miles and Dr. Rosenbloom agreed that the services of a qualified nurse will not be required for administering the “hands on” care which A will require. This is so, in particular, in relation to the suctioning of secretions (including deep suctioning), the administering of food through gastrostomy tubes and the administering of medication for epilepsy. All these tasks can be adequately performed by carers who are not qualified nurses, as they are at present for the most part. To the extent that A may in future require “hands on” nursing by a qualified nurse, both consultants were of the view that this could be provided, as the occasion required, by the usual services.[69]However, they both considered that a qualified nurse should have a supervisory role and should contribute to the ongoing training of the carers. Dr. Miles saw this as an advisory, training and co-ordinating role. Dr. Rosenbloom agreed that the nurse member of the team should advise on the medical procedures and the other care matters which were to be undertaken by the carers.[70]I accept that it is reasonable to make provision for nursing supervision. In order to provide effective supervision and advice the nursing member must be familiar with the changing needs of the patient As Dr. Miles observed, it would not be sufficient for the nursing member to visit once a month. Rather, he or she must be familiar with the problems. Furthermore, the effective supervision of the carers would require familiarity with the way in which they were discharging their functions.[71]Dr. Miles suggested that this role would normally require seeing all the members of the team weekly and that several hours per week would be reasonable. Similarly, Mrs. Daykin maintained that the supervising nurse would be unable to assess A’s care needs and the needs of existing and new carers unless he or she had the opportunity to work alongside the carers. She considered that 20 hours per month would be a reasonable provision for such a role. When pressed to quantify the number of hours per week which such a role would require, Dr. Rosenbloom suggested that eight hours per month was the sort of nursing involvement he had in mind.[72]I accept that the nursing supervisor should normally visit weekly. However, I do not consider that it would be necessary for the nursing supervisor to see all the members of the team every week. In view of the likely number of members of the team and the agreed need to be familiar with their performance, I consider that it would be reasonable to allow three hours per week for the attendance of a qualified nurse performing the role of a consultant.[73]The rate of remuneration of the nursing supervisor should be £17.50 per hour, which is the rate currently paid to E for weekday nights. Whether it is reasonable to hold monthly liaison meetings attended by the whole carer team.[74]The current arrangements for the care of A include meetings which all the care staff attend.[75]In her oral evidence Mrs. Daykin maintained that a monthly meeting should be held, attended by all members of the carer team and the supervising nurse. She considered that this is “essential” to enable them to receive input from outside experts, to exchange views among themselves, and to establish agreement on A’s needs and the consistency of his treatment. It was pointed out to her that, in her original proposals made in her first report in July 2004, no such recommendation was included. She explained that this was a matter which had only occurred to her following attendance at a conference at which she had been persuaded by case managers of the value of such meetings. Accordingly, in her calculations she had included provision for all members of the team to attend a meeting for two hours each month.[76]I do not consider that such meetings are reasonably required. Provision will be made for nursing supervision on a regular weekly basis, as indicated above. In addition, there will be regular monthly case management. The responsibilities of the case manager should include liaising between A and different professionals, such as doctors, physiotherapists, speech and language therapists and carers, ensuring that A’s needs are being met and recommending any changes to the system of care. In these circumstances, a two hour meeting of the entire team every month is not reasonably required.

What provision should be made for a carer contingency sum?

[77]The parties are agreed that some provision needs to be made for times when the parents may be unavailable and 24 hour care is required. Mrs. Daykin made provision for 24 hour care by two carers. Mrs. Conradie made provision for 60 additional care hours per week for two weeks per year.[78]So far as night time care is concerned, I do not consider that it is necessary for two carers to be in attendance whenever C and D are away. I consider it sufficient that the sleep-in carer should be able to call for another carer to join her if it became necessary. A sum should be allowed for the cost of having a second carer on call at night for four weeks per annum.[79]Normal provision is made for daytime care in holiday periods on the basis that two carers will be required for 14 hours per day. However, the number of hours per week in respect of which provision is to be made for the purchase of professional care is reduced by 31 hours in Phase 1 and 7 hours in Phases 2, 3 and 4 in order to take account of the parental contribution. I consider it reasonable that for four weeks each year when the parents may be away from home no such reduction in the hours of purchased professional care should be made. In the case of Phase 1 the calculation will also have to take account of the payments made to the parents for the care they provide. The basis on which add-on costs, i.e. those costs in addition to the costs of the basic care regime, should be calculated.[80]The competing approaches advocated by the parties were as follows. For the Claimant it was contended that on costs associated with the care regime should be individual costings and by using a 58 week year. For the Defendant it was contended that care costs should be calculated by reference to a 52 week year but should be uplifted by 27% to reflect the costs of national insurance, recruitment, annual and sickness leave, absence for training , bank holiday and payroll costs. In addition, on the Defendant’s case it would be necessary to add any allowance for carer’s subsistence, insurance and training costs. Mrs. Conradie’s evidence, which was not challenged on this point, was that this was a method used by other care experts and produced broadly the same result as estimating the individual additional components.[81]Neither system is particularly precise but in the nature of things complete precision will not be possible. On balance, I favour the Claimant’s approach because it is more likely to reflect the actual costs which will be incurred.[82]Accordingly, on-costs will be met as follows.(1) Care costs will be calculated by reference to a 58 week year(2) ENIC will be allowed as claimed in the Claimant’s schedule.(3) I accept that carers require additional pay for bank holidays and this will be allowed as claimed in the Claimant’s schedule.(4) Payroll costs will be met as claimed in the Claimant’s schedule i.e. £188 per annum x 7 carers = £1,316 per annum up to age 8 and then £188 x 8 = £1,504 from age 8.(5) Insurance is agreed in the sum of £90 per annum.(6) Advertising is allowed in the sum of £500 per annum.(7) Provision will be made for training costs in the sum of £700 per annum.(8) Subsistence allowance for carers need not include meals and is accordingly set at £40 per week.(9) It is reasonable to include a leisure allowance i.e. to meet expenses incurred by carers attending activities with A. This is allowed at the rate of £200 per annum to the age of 19 and £500 per annum thereafter. The form of the award, i.e. whether periodical payment or a conventional lump sum is the more appropriate form of award.[83]I propose to adjourn these proceedings in order to enable the Claimant to seek financial advice as to the relative merits of a lump sum award or an order for periodic payments.

Conclusion

[84]Accordingly I assess damages in respect of future care as set out in the Appendix.

Cited in 3 later judgments