Supreme Court Appeal Heard: 14th and 15th December 2016
Judgment to be handed down: 22nd March 2017

The Supreme Court will hand down judgment in its second appeal concerning the Mental Capacity Act 2005 at 9.45am on Wednesday 22nd March 2017.

What are the issues? Sir James Munby P dismissing the appeal to the Court of Appeal stated, “[this case] raises fundamental questions as to the nature of the Court of Protection’s jurisdiction and in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.”

You can find an update to the third edition of Medical Treatment: Decisions and the Law concerning Thefaut v Johnson here

1. This morning the Lord Chancellor announced that the discount rate would be revised from 2.5% to -0.75%. This clearly has major implications for the calculation of future losses and will lead to much higher awards and settlements than we have seen before. There are also major implications for the calculation of damages for accommodation where this is required as a result of negligently caused injury. Roberts v Johnstone is dead.

The decision in Roberts v Johnstone
2. Since March 1988 and the decision in Roberts v Johnstone [1989] Q.B. 878; the cost of future accommodation has been calculated on the basis of compensation for the loss of use of capital required by the purchase of a more expensive property. In Roberts the Court of Appeal held that appropriate compensation would be calculated on the basis of an assumed rate of return of 2%. In 2001 the Lord Chancellor exercised his power under the Damages Act 1996 to set the discount rate at 2.5% and this figure has been used for R v J calculations ever since.

R v J doesn’t work with a negative interest rate
3. It is a statement of the obvious to say that R v J does not work with a negative interest rate. Claimants using an R v J calculation would be paying money back to the defendant.

It was time for a change anyway
4. For many years claimants have been arguing that the R v J calculation is outdated in an era when house prices are so much greater and where a low multiplier (e.g. in cases of limited life expectancy) would not produce a large enough capital sum to fund the purchase of a property. Today’s announcement cuts through these arguments. R v J was only ever intended as a pragmatic fudge, once it ceases to be pragmatic it simply disappears as an option.

So what are the alternatives?

Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62

This was a consent claim where breach of duty was admitted, there was a dispute about the advice that should have been given and where causation was denied. Unusually the Court of Appeal reversed the first instance finding on causation with the result that the brain damaged child’s case succeeded. 

The decision provides some insight into the type of factual causation evidence that judges find persuasive. It also reminds us of the importance of identifying clearly the advice that should have been given, had a patient-centred, patient-specific approach been adopted.

Today is the official launch of the third edition of Medical Treatment: Decisions and the Law. You can find extracts from the print edition and updates on specific chapters on our website here.

John de Bono QC
AVMA Conference, 2016


Rule 1: The court will (almost) always be sceptical and unsympathetic.

Rule 2: Alcock remains the law. It is arbitrary and unfair.

Rule 3: It is almost impossible to win a secondary victim claim.

Rule 4: Your best hope is to make your client a primary victim.

Rule 5: ‘Shocking’ requires something truly extraordinary.

Rule 6: Walters was correctly decided but will rarely be followed.

Rule 7: Shock is required, neither ‘mere death’ nor a gradual decline will ever be enough.

Rule 8: A gap in time between breach and injury is a huge hurdle.

Rule 9: We should keep fighting these cases, but only the very strongest ones.

Rule 10: Great care is required with factual & expert evidence (including C&P reports).