D v R (The Deputy of S) & Anor

B e f o r e :

MR JUSTICE HENDERSON ____________________

____________________

Mr Ulick Staunton (instructed by Hunters) for the Applicant Mr Paul Marshall (instructed by Judkins Solicitors) for the First Respondent Hearing dates: 13, 14 and 16 July 2010 ____________________

HTML VERSION OF JUDGMENT ____________________

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Mr Justice Henderson:

Introduction

The question before the court on this application is whether Mr S, as I will call him, has the necessary mental capacity to decide whether an action in the Chancery Division of the High Court, started in his name and on his behalf by his younger daughter and deputy R, should be discontinued or compromised. The principal relief sought in the action is a declaration that gifts of money totalling £549,141 odd, which were made by Mr S to the first defendant, Mrs D, on fifteen separate occasions between 19 January 2006 and 11 April 2007, were procured by the undue influence of Mrs D and should be set aside. The second and third defendants are the adult children of Mrs D, to each of whom she transferred £30,000 out of the money given to her by Mr S. The action has now been settled as against the second and third defendants by a consent order dated 17 June 2010, whereby they agreed to pay £40,000 to R's solicitors. Unless it is discontinued or compromised in the meantime, the action to recover the remaining £509,141 from Mrs D will continue and is listed for hearing in November.

The application which is now before me, and which I am hearing as a nominated judge of the Court of Protection, was issued in that court by Mrs D on 6 July 2009. In her application form she described herself as a friend of Mr S, and stated the matters which she wanted the court to decide as follows:

As matters have developed, the relief sought by Mrs D has narrowed somewhat in scope, and the only question which I am asked to decide at this stage is the fundamental question whether Mr S has capacity to decide whether the Chancery proceedings should be continued.

R was appointed as her father's deputy by an order of Senior Judge Lush in the Court of Protection on 9 October 2007, following a contested hearing which had taken place on 26 September. The order appointed R "to make decisions on behalf of [Mr S] that he is unable to make for himself in relation to his property and affairs", subject to the conditions and restrictions set out in the order. Paragraph 2(a) of the order then conferred on R

Paragraph 2(b) directed the deputy to apply the principles set out in section 1 of the Mental Capacity Act 2005, and to have regard to the guidance in the Code of Practice to the Act.

R commenced the High Court action against Mrs D and her children ("the Chancery proceedings") by a claim form under Part 7 of the CPR issued on 27 January 2009. She did not need to obtain the prior authorisation of the Court of Protection to take this initial step, and did not do so: see CPR rule 21.3(2)(b)(i). She did, however, need to obtain the authority of the court before taking any further steps in the proceedings, because the order of 9 October 2007 did not expressly authorise her to conduct proceedings on her father's behalf: see CPR rules 21.3(3) and 21.4(2). An application for this purpose was therefore made by her to the Court of Protection, and by an order dated 27 April 2009 Senior Judge Lush expressly authorised her to take and conduct the Chancery proceedings on her father's behalf.

Despite the grant of this authority, however, it is common ground that R's entitlement to conduct the Chancery proceedings is dependent on her father's lacking the capacity to do so himself. This follows from the basic principle that her only right as his deputy is to take decisions that he is unable to take for himself. It is also common ground that it is Mr S's consistently repeated, deeply felt and clearly expressed wish that the Chancery proceedings should never have been begun, and that they should not now be continued. Nobody disputes that it is his fervent desire that Mrs D should be able to keep the very substantial sums which he gave to her, and that he is appalled at the prospect of legal proceedings being taken in his name to recover them.

It will already be apparent that the question which I have to resolve is one of great sensitivity. My task is also one of considerable difficulty, as will be evident from two further matters which I have not yet mentioned.

The first of those matters is that Mr S is agreed to have had testamentary capacity on 13 April 2008 when he executed a will leaving his residuary estate in equal shares to his two daughters, R and A. On 8 April 2008 a psychiatric report had been obtained from an eminent expert, Professor Robert Howard, who was then (and still is) professor of old age psychiatry and psychopathology at the Institute of Psychiatry and a consultant old age psychiatrist at the Maudsley Hospital in London. In that report he expressed the clear view that Mr S had testamentary capacity when he examined him at his home on 3 April 2008. It might be thought to follow from this undisputed evidence that, if Mr S then had capacity to make a will, he would equally have had capacity to include in the will a provision confirming the gifts which he had made to Mrs D in 2006 and 2007, and directing his executors (who were R and an unspecified partner in Judkins Solicitors, who have at all material times acted for R) to take no steps to recover or set aside the gifts.

The second matter is that I have had the assistance of expert evidence on both sides, and of a report prepared for the court by a Special Visitor, Dr Andrew Barker, appointed pursuant to an order which I made on 20 October 2009. Unfortunately, however, there is an unbridgeable division of opinion between the experts. Professor Howard, instructed as before on behalf of Mrs D, is of the firm opinion that Mr S does indeed have sufficient capacity to decide whether the Chancery proceedings should have been begun, and whether they should be continued. The equally eminent expert instructed by R's solicitors, Professor John Graham Beaumont, who specialises in clinical psychology and neuropsychology and is head of the department of clinical psychology at the Royal Hospital for Neuro-Disability, honorary professor at Roehampton University and a Fellow of the British Psychological Society, disagrees. So does Dr Barker, a consultant in old age psychiatry, who visited Mr S at his home on 21 November 2009 and prepared a report dated 2 December 2009.

Resolution of this case will ultimately depend on my analysis and evaluation of the conflicting expert evidence (a term which I use to include Dr Barker's report). All three experts gave oral evidence and were cross-examined on the first and second days of the hearing before me. Before I come on to the expert evidence, however, I will first set out the undisputed background facts and provide a description of the Chancery proceedings. I will also set out the relevant provisions of the Mental Capacity Act 2005, and discuss the legal principles which I have to apply.

Background facts

Both sides agreed that the background facts were stated accurately, and for present purposes adequately, by Senior Judge Lush in the written judgment which he delivered on 28 September 2007. The account which follows is largely based on that judgment.

Mr S was born in Suva, Fiji, on 7 February 1933. He is therefore now 77 years old. His parents were ethnic Indians from Uttar Pradesh. He was formerly a managing clerk with J E Baring & Co, solicitors. In 1963 he married, but after 19 years of marriage he and his wife separated in August 1982, and they divorced in 1985. They had two children: A, who was born on 19 September 1963 and lives in St Albans, Hertfordshire, and R, who was born on 9 January 1965, and is a school teacher. She too lives in St Albans.

Mr S lives alone in a bungalow, which he owns, in Kingsbury, London NW9. Its estimated value in September 2007 was about £270,000. No formal valuation of the property has been carried out, and both sides have been content to proceed on the footing that this remains a reasonable estimate of its value.

On 6 February 2004 Mr S signed an enduring power of attorney, in which he appointed Robert Sayer, of Sayer Moore, solicitors, 190 Horn Lane, Acton, London W3 to be his sole attorney.

In April 2005 Mr S suffered a stroke, and requested help at home with various chores. Mrs D, who was then a legal secretary employed by his solicitors, Sayer Moore, befriended him, began visiting him regularly, and took on the role of his primary carer. Mrs D was born in 1960 and lives in Acton, West London.

On 20 June 2005 Mr S signed another enduring power of attorney, in which he appointed Robert Sayer and another partner in Sayer Moore, Kimberley Ann Walsh, to be his joint attorneys.

On 28 February 2006 Mr S signed a third enduring power of attorney, in which he appointed Mrs D and two partners in the firm of Redferns, solicitors, of 33/35 Bridge Road, Wembley, Middlesex jointly and severally to be his attorneys. Redferns drew up the third power of attorney, and Derek Brennan of that firm witnessed Mr S's signature.

Between January 2006 and April 2007 Mr S made the gifts to Mrs D which I have already mentioned. The particulars of the gifts pleaded in paragraph 47 of the particulars of claim in the Chancery proceedings are admitted in the defence of all three defendants dated 12 March 2009. In summary, the payments were as follows:

The majority of the payments were made from Mr S's current account with Lloyds Bank. The sums paid by cheque included the cash proceeds of a general dealing account held by Mr S with his stockbrokers, T.D. Waterhouse, (the payments of £301,941 and £28,102 in August and November 2006) and the encashment of an ISA account held with the same firm (the payment of £42,972.91 on 24 May 2006). The payment of £61,837.48 on 12 May 2006 represented the proceeds of National Savings Certificates which Mr S directed to be paid into Mrs D's account. Similarly, the £30,000 paid on 25 March 2006 represented the proceeds of Premium Bonds held by Mr S.

In paragraph 48 of the particulars of claim it is pleaded that the above payments "were such as to constitute the disposal of the greater part of the Claimant's disposable assets, the remaining principal asset being his home …". This is admitted in the defence, subject to the averral "that the Claimant remained entitled to the income from his pensions which he considered were adequate to provide for him".

On 3 July 2007 R applied to the Court of Protection to be appointed as her father's receiver pursuant to the provisions of section 99 of the Mental Health Act 1983. In the declaration which she made in support of the application she made the following personal statement:

On 8 July 2007 Mrs D lodged an objection to R's application. She contended (a) that the proposed appointment of R was against the express wishes of Mr S; (b) that R was an unsuitable person to take charge of his finances; (c) that the appointment was unnecessary, because Mrs D already had a power of attorney and she had been looking after his personal and financial needs for some time; and (d) that no working relationship could exist between her and R, if R was appointed as receiver. Shortly afterwards, Redferns applied to register the enduring power of attorney that Mr S had signed on 28 February 2006. This application, in its turn, was met by an objection from R on the grounds that fraud or undue pressure had been used to induce Mr S to create the power, and that in all the circumstances the attorneys were unsuitable to fulfil that role.

The receivership application, and Mrs D's application to register the enduring power, both came on for hearing before Senior Judge Lush in the Court of Protection on 26 September 2007. In the judgment which he gave on 28 September, he decided that Mrs D was unsuitable to be Mr S's attorney, because the transactions in her favour called for an explanation and it would be presumed that they were procured by undue influence unless she could provide a satisfactory explanation to the contrary. The transactions needed to be investigated, and it would be impossible for Mrs D, as attorney, to carry out an investigation into her own dealings. On the receivership application, he exercised the discretion which was then contained in section 99 of the Mental Health Act 1983 and decided that R, rather than a panel receiver, should be appointed for reasons which he explained as follows:

Since the provisions of the 2005 Act had come fully into force before the order of the court was drawn up on 9 October 2007, the order appointed R as her father's deputy, even though the application had been substantively determined under the law previously in force. I have already referred to some of the main provisions of this order in paragraph 3 above. The order was subsequently sealed on 3 December 2007.

The Chancery proceedings

The particulars of claim, settled by R's counsel, Mr Paul Marshall, run to 55 paragraphs and set out R's claim in considerable detail. The immediate background to the disputed gifts is pleaded as follows:

The pleading goes on to refer to the first two gifts, of £3,000 and £13,000 respectively, made in January and February 2006. It is alleged that Mrs D recognised the inappropriateness of the second gift, but instead of referring the matter to her employers, or seeking their advice, she consulted Redferns. On 2 February 2006 Mr Brennan, then a partner in Redferns, wrote to Mr S in the following terms:

It is averred that this limited advice was ineffective to protect against the circumstances that might vitiate the proposed gift.

Reference is then made to a manuscript note which Mr S wrote at about the same time, expressing his wish to give £13,000 to Mrs D "free of any terms or conditions as an outright gift". It is said that the nature of the handwriting was such "as would lead any reader of it reasonably to infer that the writer suffered from some kind of infirmity including significant motor or visual impairment or both".

Paragraphs 25 to 42 and 44 refer to various communications passing between Mr S and Redferns in February and March 2006, and to a meeting which took place on 15 February 2006 at which he gave instructions to Mr Brennan in connection with the preparation of a new will and a new enduring power of attorney. On 28 February 2006 Mr S signed the third enduring power of attorney (see paragraph 16 above), and also made a will appointing Mrs D and Redferns executors and trustees of his estate and devising the residue of his estate to Mrs D. It is alleged that Mr Brennan subsequently commented, in a letter dated 8 March 2007, that when he prepared the will Mr S provided no information about any family and, because he was emphatic about his requirements, there was "no need to provide advice as to the consequence of cutting out his family".

It is then alleged (and admitted in the defence) that in February or March 2006 Mr S wrote in manuscript to his stockbrokers, T. D. Waterhouse Investor Services (Europe) Ltd, asking them to close three specified accounts which he held with them and to remit the proceeds as soon as possible. This was followed up by a typed letter on 28 March 2006 in the following terms:

It is alleged, and admitted, that Mr S did not at the material time own a computer word-processor or printer, and that Mrs D typed this letter and later placed it before Mr S for him to sign, which he did.

I have already referred to paragraphs 47 and 48 of the particulars of claim, which set out in tabular form the 15 payments which were made and aver that they were such as to constitute the disposal of the greater part of Mr S's disposable assets. It is then pleaded that the gift of these sums was so large as not to be reasonably accounted for on the ground of friendship or other ordinary motives; that they were paid in circumstances in which there existed a relationship of dependence by Mr S upon Mrs D and trust and confidence reposed by him in her, including in connection with his financial affairs; and that at no time did he exercise his independent and informed judgment about the nature of the gifts, whether individually or cumulatively, nor with regard to the proportion of his assets that they represented or their effect upon his overall financial position. Nor did he receive any independent advice in connection with the gifts. In the premises, it is alleged that the payments are presumed to have been procured by undue influence and they are liable to be set aside accordingly.

The defence, which as I have said was a joint defence served on behalf of all three defendants, denies that the relationship between Mr S and Mrs D was one where he reposed trust and confidence in her in respect of his financial affairs, and avers that it was not one where the presumption of undue influence arises. It is further said that his decisions to make the various gifts "were made by him after full, free and informed thought". It is also denied that Mr S's mental health was adversely affected by the stroke which he suffered in 2005, or that he became progressively incapacitated during the period when he made the gifts, or that he ever drank excessively until just before Christmas 2006 when he began to drink about one or one and a half bottles of whiskey a week.

In fairness to Mrs D, I should set out her pleaded account of how her relationship with Mr S began and developed:

I should also refer to paragraph 23 of the defence, where the following particulars are given in support of the allegation that Mr S remained in control of his financial affairs:

It is unnecessary for me to say anything more about the Chancery proceedings, and I emphasise that nothing in this judgment should be read as expressing any concluded view on the merits of the claim. That remains to be determined, if at all, in the forthcoming trial, when the pleaded cases on each side will be tested in the light of the full oral and documentary evidence then before the court. I do, however, think it appropriate to say that the claim, as pleaded, is a serious and substantial one, which prima facie gives rise to a strong case for Mrs D to answer. At the simplest level, the making of cash gifts of nearly £550,000, by an elderly man in his seventies, living alone and in poor health, in favour of a lady who was a legal secretary employed by his solicitors, is a transaction which calls out for an explanation, and which would set alarm bells ringing in the mind of any experienced equity lawyer. To make the same point another way, it is certainly not the kind of case which can be dismissed as a speculative one with little more than nuisance value. It is the kind of case, I would venture to add, which cries out for mediation and a realistic settlement. It is most unfortunate that efforts to settle the case by mediation have so far failed to bear fruit.

The Law

As Lewison J explained in In re P (Statutory Will ) [2009] EWHC 163 (Ch) , [2010] Ch 33 , at paragraph [25], the Mental Capacity Act 2005 ("the 2005 Act") introduced a new legislative framework dealing with loss of mental capacity, following a number of consultation documents and reports of the Law Commission. The crucial provisions for present purposes are those contained in sections 1 to 3 of the 2005 Act, which provide as follows:

Section 4 then expands on the concept of "best interests" referred to in section 1(5). It sets out a process of structured decision-making which must be employed on behalf of a person who is unable to make a decision for himself, because he lacks the capacity to do so in the sense explained in section 3. Accordingly, this section lays down the procedure that R will be obliged to follow in prosecuting the Chancery proceedings if I come to the conclusion that Mr S lacks the capacity to decide whether they should be continued or compromised. It is unnecessary for me to cite all of the section, but at least the following provisions are of potential relevance:

Under the heading "The general philosophy of the 2005 Act", Lewison J commented on the new regime which it introduced, and on one aspect of the statutory test of incapacity (the ability to "use or weigh" information in making a decision) which is of particular relevance to the present case:

I respectfully agree with these comments, and also with the valuable guidance about the practical application of the "best interests" test given by Lewison J in paragraphs [38] to [45] of his judgment in In re P .

I would add that it is important not to confuse the structured and relatively objective "best interests" test, which applies where a person lacks the capacity to take a decision for himself, with the prior question whether the person has the requisite capacity to do so. That question has to be determined in accordance with the principles in sections 1 to 3 of the 2005 Act. It is clear that the test of capacity is both issue and time-specific, and that failure to satisfy any one of the four criteria in section 3(1) in relation to the particular decision in question, if established to the satisfaction of the court on the balance of probabilities (see section 2(4)), will be fatal. On the other hand, all practicable steps must be taken to assist the person to make the decision for himself (section 1(3)), and full regard must be had to the principles in subsections 3(2) and (3), which further explain and qualify the meaning of the criteria in subsection (1)(a) and (b) (understanding and retention of the information relevant to the decision). Thus, the information relevant to the decision (which includes, by virtue of section 3(4), information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision), will be sufficiently understood if the person is able to understand "an explanation of it given to him in a way that is appropriate to his circumstances". Moreover, the fact that he is able to retain the relevant information for a short period only does not, in itself, prevent him from being regarded as able to make the decision: section 3(3). It follows that even profound loss or impairment of memory may be compatible with capacity to make the decision. It will be enough, so far as criterion (b) is concerned, if the person's short term memory enables him to retain the relevant information, once it has been supplied to him, for long enough for him to understand and evaluate it and to form and communicate his decision.

Two further important provisions reflect the basic principles of personal autonomy and freedom of action which seem to me to inform and illuminate the new statutory regime. First, a person must be assumed to have capacity unless the contrary is established: section 1(2). Thus the burden of proof in the present case lies on R to establish that Mr S lacks capacity to discontinue or settle the Chancery proceedings. If the burden is not discharged, it must be assumed that he has the necessary capacity and the court has no right to interfere with his decision. Secondly, the fact that the decision is an unwise one does not, of itself, justify a conclusion of lack of capacity: see section 1(4). Just as a testator has always had the freedom (subject now to the constraints of the Inheritance (Provision for Family and Dependants) Act 1975) to make testamentary dispositions which are unreasonable, foolish or contrary to generally accepted standards of morality, so too a person in his lifetime has the freedom to act in a manner which is (for example) unwise, capricious, or designed to spite his relations. The pages of English fiction and of the law reports alike bear ample testimony to the exercise of this basic human right, even if it is not one enshrined in so many words in the European Convention on Human Rights (although Articles 8, 9 and 10 are, of course, all relevant in this context).

The significance of section 1(4) must not, however, be exaggerated. The fact that a decision is unwise or foolish may not, without more, be treated as conclusive, but it remains in my judgment a relevant consideration for the court to take into account in considering whether the criteria of inability to make a decision for oneself in section 3(1) are satisfied. This will particularly be the case where there is a marked contrast between the unwise nature of the impugned decision and the person's former attitude to the conduct of his affairs at a time when his capacity was not in question.

Before moving on, I should record that it is common ground that what is sometimes called the diagnostic test in section 2(1) is satisfied in the present case, namely that Mr S suffers from "an impairment of, or a disturbance in the functioning of, the mind or brain". The existence of such an impairment or disturbance is not in issue, although its precise nature has not been established because Mr S has never undergone a full neurological examination. In particular, it is not disputed that Mr S suffers from a severe impairment of his long term (or semantic) memory, although his short term memory is only moderately impaired and falls within the lower part of the average range for a man of his age. One of the main areas of disagreement between the experts is whether, and if so how far, his mental impairment or disturbance extends beyond the severe impairment of his long term memory. The other, and closely related, main area of dispute is whether the effect of his mental impairment or disturbance is such that he is unable to decide for himself (within the meaning of section 3) whether or not to continue with the Chancery proceedings.

The nature of the relevant decision

It is convenient at this point to examine more closely the nature of the decision which has to be made, because it is only when this has been done that the criteria in section 3(1) can be properly assessed in relation to the decision.

At a superficial level, the nature of the decision may be simply stated. As I have already said more than once, it is whether to discontinue, or to continue to prosecute, the Chancery proceedings. But that decision cannot be taken, it seems to me, without at least a basic understanding of the nature of the claim, of the legal issues involved, and of the circumstances which have given rise to the claim. It would be an over-simplification to say that the claim is just a claim to set aside or reverse the gifts which Mr S made to Mrs D, because in the ordinary way a gift is irrevocable once it has been made and perfected by delivery or transfer of the relevant assets. If a gift is to be set aside or recovered, some vitiating factor such as fraud, misrepresentation or undue influence has to be established; and if the donor is to decide whether or not to pursue a claim, he needs to understand, at least in general terms, the nature of the vitiating factor upon which he may be able to rely, and to weigh up the arguments for and against pursuing the claim. Provided that the donor is equipped with this information, and provided that he understands it and takes it into account in reaching his decision, it will not matter if his decision is an imprudent one, or one which would fail to satisfy the "best interests" test in section 4. But if the donor is unable to assimilate, retain and evaluate the relevant information, he lacks the capacity to make the decision, however clearly he may articulate it.

The need for an understanding of the nature of the claim is particularly pronounced, in my view, where the claim is founded on a rebuttable presumption of undue influence, and where the relationship which arguably gave rise to the claim is still in existence. One would naturally not expect a lay person to have the same understanding as a lawyer of the principles expounded by the Court of Appeal in Allcard v Skinner (1887) 36 Ch D 145 and by the House of Lords in Royal Bank of Scotland Plc v Etridge (No.2 ) [2001] UKHL 44 , [2002] 2 AC 773 . But if a donor is to decide whether or not to pursue such a claim, he must in my view understand (at least in the simple terms envisaged by section 3(2)):

It is only with the benefit of this minimum level of information that a donor in the position of Mr S can begin to reach a decision whether or not to pursue the claim, or (just as important) whether to attempt to settle it, and (if so) on what terms. Furthermore, where (as in the present case) the relationship with the donee which gave rise to the potential claim is apparently still subsisting, the court will in my judgment need to scrutinise with particular care whether the donor can stand back from the impugned transactions with sufficient detachment truly to understand the nature of the claim. By way of contrast, the necessary degree of understanding is likely to be far easier to establish where the donor was under an influence at the time of the gift (e.g. by a religious sect or guru) which has subsequently come to an end.

I emphasise these points because Mr Staunton on behalf of Mrs D submitted that it was unnecessary for the court to concern itself with the technicalities of the law of undue influence, and that all Mr S needed to understand was that he had a good claim to recover the gifts which he had made. Mr Staunton suggested that if Mr S had that limited degree of understanding, no more was necessary, because if he wished Mrs D to retain the gifts even on the assumption that he had a good claim to recover them, the same must be true a fortiori if he were able to understand the actual complexities of the Chancery proceedings. The submission is a beguiling one, but I am unable to accept it. As I have tried to explain, a good (or any) claim to recover a gift must be based on the existence of some vitiating factor, and without an understanding of the relevant factor, and of the circumstances which arguably engage it, the donor cannot in my judgment be said to understand the information relevant to the decision whether or not to pursue the claim.

The matter may also be tested in this way. If the immediate question were not whether the Chancery proceedings should be continued at all, but rather whether an offer of settlement should be accepted, it would in my view plainly be necessary for Mr S to have a basic understanding of the nature of the claim, of its legal basis, and of the evidential hurdles facing each side, before he could form an opinion on the merits of the offer. He might then decide to disregard that opinion for other reasons (for example, an overriding wish that Mrs D should keep the gifts, even if she had taken advantage of him and they were improperly obtained); but the formation of the opinion would still be a necessary step in the decision-making process, and if Mr S lacked the capacity to form the opinion, his overriding wish that Mrs D should in any event keep the gifts would not, in itself, be enough. If, as I think, this approach would be correct if the question were whether to settle the Chancery proceedings, the same must in my view be true where the question is whether to continue them at all. It cannot be enough for Mr S simply to say that he wishes Mrs D to keep the money which he gave her, and that no action of any kind should be taken to recover it.

The expert evidence: (1) The written reports

Although Professor Howard, Professor Beaumont and Dr Barker were the only witnesses to give oral evidence, and although their reports form the principal and most recent written expert opinions on the issue of Mr S's capacity, a number of earlier reports were included in the trial bundle, and I will refer to them briefly by way of background.

(a) The report of Dr Robert Powell dated 16 July 2007

Dr Powell was a consultant psychiatrist working for the Central and North West London Mental Health NHS trust. He visited Mr S at home on the evenings of 21 May and 1 June 2007, each visit lasting for around 2 hours. He was asked to carry out an assessment of his mental health and capacity by Dr S Prasad, who at the time was Mr S's GP. In his report dated 16 July 2007, which was addressed to Dr Prasad, Dr Powell recorded his understanding that the assessment had initially been requested by Mrs D, because Mr S's family were concerned that he had given away much of his wealth over the previous two years and they were worried that he might lack the mental capacity needed to make such decisions.

On the first of his visits Dr Powell met Mrs D, and he arranged that Mr S's daughters, A and R, should be in attendance on his second visit. He also had the benefit of correspondence and telephone conversations with the solicitors then acting for Mr S and R, and with representatives of Brent Social Services.

The report impresses me as a careful and thorough piece of work. It set out Mr S's past medical history, his current medication, the scale of the payments made by him to Mrs D (which Dr Powell was accurately informed amounted to over £500,000) and Mr S's personal history as recounted to him by Mr S on his first visit. The description is far too long to cite in full, but I single out the following passages:

During his second visit, Dr Powell asked Mr S questions about his domestic and care arrangements, to which Mr S replied:

Mr S went on to state, clearly and without prompting, that he would very much like to live with Mrs D because he would have companionship and friendship; and he repeated this view when Dr Powell again asked him where he would prefer to live in the presence of his two daughters. They found this hard to understand, and remonstrated with their father, to which he replied that Mrs D would have him to live with her because of "personal chemistry, compassion and kindness".

Under the heading "Mental state examination", Dr Powell said this:

Dr Powell then set out his opinion under a number of headings. He concluded that Mr S was suffering from "a dementia of moderate severity", and that in addition his heavy alcohol use might have caused brain damage. He recognised that his growing dependence on Mrs D would have made him "susceptible to exploitation by others and [Mrs D] in particular", but he added that, apart from the circumstantial evidence of large sums having passed between them, he was not aware of any evidence that she had attempted to coerce him during the last two years. On balance, he doubted whether Mr S had testamentary capacity at the time of their interview. He also thought that Mr S was probably no longer able to manage his affairs independently, and had become vulnerable to exploitation. He therefore recommended that Mr S should be referred as soon as possible to become a patient under the Court of Protection.

(b) The report of Dr O V Briscoe dated 20 July 2007

In July 2007 Dr O V Briscoe, FRCP, FRC Psych, a consultant psychiatrist, received instructions from the Public Guardianship Office to visit Mr S and produce a report. The questions on which he was asked to give his opinion included whether Mr S was able to look after his own affairs, and whether he currently had testamentary capacity. This report, too, seems to me a thorough and professional piece of work. Dr Briscoe set out the information available to him, including conversations with R, A and Mrs D and with a number of people who had been involved in Mr S's medical and social care. He had also seen a copy of Dr Powell's report. His visit to Mr S took place at Charing Cross Hospital, and lasted for one hour. The comments which Mr S made to him about Mrs D appear to be broadly similar to those recorded by Dr Powell, although he was unable to say how much money he had given her, whether as a lump sum or instalments, or for what particular purposes. A little later, however, he said that his purpose had been to make provision for her old age, and he had advised her about how to invest money he gave her. Even if she offered to return it, he would not take it back.

Dr Briscoe's conclusions on the issues of Mr S's ability to manage his own affairs and his current testamentary capacity were as follows:

(c) The report of Dr Marilyn Cook dated 16 March 2008 and her statement of 13 April 2008

Dr Cook is a consultant in old age psychiatry who was instructed by Judkins solicitors, on behalf of R, to examine Mr S and form an opinion of his current mental capacity, including in particular his testamentary capacity. She was supplied with the earlier reports of Dr Powell and Dr Briscoe, and spoke with a representative of the Official Solicitor. She interviewed Mr S at his home on 16 March 2008. The interview lasted a full hour, and was conducted in private. After the interview Dr Cook discussed Mr S's current care arrangements with R. The interview was twice interrupted by Mrs D, who arrived unannounced having used a key to enter the property.

Dr Cook's report is relatively short, but like all the reports of interviews with Mr S it contains material of value which helps to fill out the overall picture. I cite the following extract:

Dr Cook's opinion was that Mr S no longer had the necessary mental capacity to manage his financial affairs. She said that she would support the making of an application for a statutory will to benefit his daughters. She expressed adverse views about Mrs D's conduct and influence on Mr S, in language which may be thought rather partisan.

Despite her suggestion that a statutory will should be made for Mr S, Dr Cook was evidently asked to reconsider the question of his testamentary capacity, and on 13 April 2008 she accompanied Mr Judkins on a visit to Mr S, presumably arranged by R, with a view to the preparation and execution of a will by him. In a signed statement made by her on the same day, Dr Cook recorded what happened during the visit. She satisfied herself that Mr S had the requisite testamentary capacity. Mr Judkins prepared a will, which was based on a draft which he had brought with him but was altered to take account of specific instructions from Mr S. Mr S expressed himself as very happy with the will, which was then executed and witnessed by two neighbours.

Dr Cook's statement includes the following passage:

(d) Professor Howard's first report dated 8 April 2008

Professor Howard was instructed by Mrs D's solicitors, Hunters, to examine Mr S and provide a report dealing with the following issues: whether Mr S had testamentary capacity to execute a will in February 2006 (the date of his earlier will in favour of Mrs D), whether he had capacity to make substantial gifts of money to her in 2006, and whether he currently had testamentary capacity and capacity to make decisions about who should be allowed to visit and have contact with him. This last question arose in the context of proceedings which were pending in the Court of Protection in relation to his contact with Mrs D. Professor Howard examined Mr S at his home on the evening of 3 April 2008. He was supplied with the reports of Dr Powell, Dr Briscoe and Dr Cook, and witness statements filed in the Court of Protection proceedings by R, Mr Judkins and Mrs D.

Professor Howard summarised his views at the beginning of his report:

Professor Howard described his examination of Mr S, which had lasted for 90 minutes. He found him "to be a charming and highly socially skilled man and it was very easy to achieve a friendly rapport during interview". Mr S told Professor Howard about his childhood in Fiji, and gave him "a very interesting and relatively sophisticated account of the background to the tensions between the ethnic Fijian and Indian populations of the island". Professor Howard included a number of verbatim quotations of things said and answers given by Mr S during their interview, in order to give "some impression of his ability to use language to express himself". For example, at the end of his account of the ethnic tensions in Fiji, Mr S told Professor Howard:

Mr S described his career in the judicial department of the Fijian Civil Service, and his arrival in the UK in 1962 when he joined the War Office (as it then was) as a clerical officer. He described his marriage, its subsequent breakdown and his estrangement from his daughters. He could not recall any particular incident that had led to the estrangement, and said:

Professor Howard administered the Mini-Mental State Examination, on which he scored 15 out of a possible 27 points which indicated "a moderate level of cognitive impairment".

Professor Howard questioned Mr S about his relationship with Mrs D. The following passage, in particular, is in my view significant:

In the section of his report dealing with current testamentary capacity, Professor Howard assessed Mr S's understanding of the act of making a will and its effects, his recall of the extent of the property of which he was disposing, and his appreciation of the claims of others on him. Under the latter heading, Mr S said that he wished his daughters to be sole beneficiaries of his proposed new will. He then explained his reasons for taking this view:

Professor Howard's conclusion was that Mr S had testamentary capacity:

(e) Professor Howard's second report dated 10 June 2009

I now move on to the reports which post-date the commencement of the Chancery proceedings, and which were prepared to assist the court on the question which I now have to consider. I begin with Professor Howard's second report, dated 10 June 2009, which was prepared in connection with Mrs D's application to the Court of Protection of the same date. Professor Howard's instructions were contained in an email from Hunters dated 1 June 2009, in which Mr Richard O'Halloran, the partner with conduct of the matter on behalf of Mrs D, said this:

The relevant parts of the application form were duly completed by Professor Howard, with adjustments to the standard form to make it clear that in his view Mr S did have the requisite capacity. The key views expressed by him in section 7 of the form read as follows:

In his accompanying second report, Professor Howard recorded that it was based on an examination of Mr S that he had carried out in his home on the evening of 8 June 2009. The examination took just under one hour. Mr S looked physically frailer than he had when Professor Howard first examined him in April 2008, but his social manner remained unchanged and Professor Howard found him "to be charming, articulate and highly emotionally expressive". His performance on the Mini-Mental State Examination was very similar to his performance on the previous occasion: this time he scored 14 out of a possible 27 points.

The report then continues:

Professor Howard then summarised his opinion as follows:

At the end of this report, as at the end of his previous report, Professor Howard set out a declaration and statement of truth in a standard form for an expert witness.

(f) The report of Dr Jan Falkowski dated 15 October 2009

Dr Falkowski is a consultant psychiatrist at the Royal London Hospital. He was instructed on behalf of R to prepare a report on Mr S, based on the following written materials: the judgment of Senior Judge Lush dated 28 September 2007; the reports of Dr Powell, Dr Briscoe, Dr Cook and Professor Howard; the statements of case in the Chancery proceedings; and Mrs D's application to the Court of Protection issued on 6 July 2009, together with her witness statement in support. Dr Falkowski was not instructed to examine Mr S, and did not do so. His report was based solely on the information contained in the papers made available to him. His conclusion, based on a brief summary of the material before him, was that Mr S did not understand why the Chancery proceedings were being brought, that he did not have the capacity to understand the information involved, or to consider it, and that he did not understand the impact the sums of money involved could have on his future care or needs. Since this report was not based on any first-hand knowledge of the case, and since Dr Falkowski never met Mr S, the weight that I can attach to it is inevitably very limited, and neither side sought to rely upon it at the hearing.

(g) The report of Dr Barker

At a directions hearing on 20 October 2009 I ordered that a report should be prepared by a Special Visitor of the Court of Protection under section 49 of the 2005 Act, on the issues whether Mr S had capacity to decide whether the Chancery proceedings should be continued and whether he had capacity to enter into a compromise of the claim (and, if so, on what terms). Among my concerns in making this order were, first, that Mr S should be examined by an expert who was independent of the parties, and, secondly, that when the examination took place Mr S should be free from immediate influence by either Mrs D or R. The order therefore contained provisions that for 14 clear days before the examination took place Mrs D should not contact Mr S in any form or manner, and that during the same period R should not speak to him about the Chancery proceedings or any of the issues relating to them. The schedule to the order set out the material to be provided to the Special Visitor, and an agreed list of five specific issues for him to address, as follows:

The Special Visitor who prepared the report was Dr Andrew Barker, who is a consultant psychiatrist and fellow of the Royal College of Psychiatrists. He interviewed Mr S at his home on Saturday, 21 November 2009 for approximately an hour and a quarter. His report, dated 2 December 2009, is in my view an admirably well-organised and comprehensive document.

Dr Barker began his report by summarising, in some detail and with perceptive comments, the information available to him from the documents in the case. These included all of the earlier reports which I have mentioned and the witness statements in the Chancery proceedings. In view of the adversarial nature of the case, Dr Barker wisely said that he had taken little information from the witness statements. He did, however, refer to some handwritten letters from Mr S dating from 2000 and 1998 which R had exhibited to one of her statements. He recorded that one of these letters, to R herself, indicated Mr S's "strong views on his daughter's financial prudence". In this letter Mr S had given his opinion on a mortgage that R appeared to have taken out, commenting that in his view she had paid too much for it and advising her to shop around on the web for cheaper alternatives. He had advised her about pension payments and national insurance contributions, and recommended her to "fill the pension pot to the brim for your old age security". He had expressed strong views that she should be self-reliant and look out for herself and her son.

Dr Barker then described the information which he had derived from his interview with Mr S. This section of his report is too long to quote in full, but I will cite some extracts from it:

Dr Barker also administered a Mini-Mental State Examination, in which Mr S scored 17 out of 30. Like Professor Howard, he left out the last three questions because of Mr S's visual impairment and difficulty with writing, so the score might be more fairly represented as 17 out of 27. Dr Barker also asked Mr S to list as many animals as he could in one minute, and he scored six, with two repetitions of words. He then asked him to tell him as many words as he could think of beginning with the letters F, A and S in a minute. His scores on this last test were eight (plus four repetitions), five (with three repetitions), and nine (with one repetition).

Dr Barker then turned to the specific questions on which he had been asked to advise. Rather surprisingly, to my mind, he considered the question of "capacity to litigate" not by reference to the provisions of the 2005 Act, but rather by reference to a three stage test contained in guidance issued by the Law Society and the British Medical Association in 2004. In the light of this guidance, he directed himself that if a person is in receipt of assistance and advice in managing his property and affairs, capacity requires him:

Dr Barker then continued as follows:

Dr Barker then briefly stated his answers to the specific questions on which he had been asked to advise. In his opinion, on the balance of probabilities, Mr S did not have capacity to decide whether the Chancery proceedings should be continued, or to enter into a compromise of the claim. Dr Barker considered that Mr S was unable to remember and to weigh up the true value of money; that he had no, or inconsistent, understanding of the circumstances in which he made the gifts to Mrs D; that he had limited and inconsistent understanding of the effects of the gifts on his overall financial position; that he was aware that he might have financial needs in the future, but had limited ability to plan for such needs; and that he did not have a full understanding of the consequences of recovering sums paid, due to his limited ability to understand the true value of the money. Dr Barker concluded with these words:

(h) The third and fourth reports of Professor Howard

At a further directions hearing on 8 December 2009 I heard submissions from counsel for Mrs D and R about the future conduct of the case. I was told that Mrs D, through Professor Howard, wished to put some written questions to Dr Barker as provided for under the Court of Protection Rules, and I gave directions enabling this to be done by 8 January 2010. I also gave permission for R to put written questions to Dr Barker by the same date. I directed that Dr Barker should do his best to provide written answers to the questions by 26 January 2010, and that the application should be re-listed during the week beginning 1 February with a time estimate of 2 hours. I also gave permission to apply, including permission to apply to me in writing, and reserved the matter to myself if practicable.

Despite the basis on which this application had been made, it soon transpired that Professor Howard did not in fact wish to put any written questions to Dr Barker, because in his view their difference of approach was so marked that nothing would be gained by doing so. In January 2010 further written applications for directions were made to me by the solicitors on each side, and on 25 January I directed that Professor Howard and Dr Barker should hold a meeting for the purpose of discussing Mr S's capacity, and that they should then file and serve a joint statement identifying the issues on which they agreed and those on which they disagreed, and giving a summary of their reasons for any disagreement. I said that unless they were able to reach agreement, they should both attend for cross-examination when the application was restored for further hearing. I directed that the restored hearing should if possible take place before myself, on a date convenient to the parties and the experts, with a provisional time estimate of one and a half days.

Matters then took a rather unexpected turn. Without any further application to the court, and without obtaining the prior agreement of R's solicitors, Hunters procured two further reports from Professor Howard. The first of those reports (his third) was based upon an examination of Mr S on 16 January. It is fair to say that Hunters had informed R's solicitors that Professor Howard was going to see Mr S again on that day, but R's solicitors had objected in writing to any further examination by Professor Howard taking place in the absence of permission from the court, and there was anyway no indication that a further report would result from the visit. The second of the further reports (Professor Howard's fourth) was completely unheralded.

The third report was intended to provide Professor Howard's own assessment of Mr S's frontal lobe capacity. It emerged for the first time in cross-examination that Professor Howard had been instructed to provide this report at a conference with counsel to discuss Dr Barker's report. The instructions were given orally, and there is no record of them either in the report itself or in any other form which has been disclosed to the court. Furthermore, although Professor Howard was provided with a copy of Dr Barker's report, and although it was clearly Dr Barker's evidence about frontal lobe functions which had prompted Professor Howard's further report, he nowhere mentions it. All that he says by way of introduction to his third report is that the question of Mr S's capacity was still at issue, and:

Professor Howard found Mr S to be in a much better physical state of health than when he had last examined him on 8 June 2009. He appeared animated, and did not appear to become physically fatigued during the hour they spent together. His performance on the Mini-Mental State Examination was again very similar to his previous performance, with a score of 18 out of 27. Mr S had no recollection of their previous meetings, however, and when Professor Howard explained the purpose of his visit Mr S became animated and said this:

Professor Howard continues:

Professor Howard then explained the nature of executive and frontal lobe functions:

Professor Howard had administered these "bedside tests" to Mr S, and he then reviewed his performance under each of them in turn. His performance on the verbal fluency tests, which Professor Howard administered last and during which Mr S repeatedly complained of tiredness, was "less than would be expected from a man with his level of educational attainment", and although his performance on one test was in the impaired range his performance on another was within the average range for an older person. On interpretation of proverbs (a test of reasoning ability, although recognised to be influenced by educational ability and cultural background), Mr S's ability was in the normal range "and demonstrated a preservation of his reasoning skills that would not be expected in a patient with severe frontal lobe damage". For example, he had explained the proverb "a stitch in time saves nine" by saying "Procrastination is no good. A job that should be done must be done now to save headaches". On similarities and differences (a test used to assess inferential reasoning) Mr S's performance was again normal, as was his performance on cognitive estimates (i.e. questions that require a patient to make estimations of the number or size of some parameter). For example, when asked to estimate the number of camels in Holland he replied:

The report then continued as follows:

The purpose of Professor Howard's fourth, and final, report dated 18 March 2010 was to deal specifically with the five agreed questions set out in the schedule to my order of 20 October 2009, and upon which Dr Barker had given his views in his report. Professor Howard's instructions were given to him at a further conference with counsel on 3 March, and were confirmed in an email from Mr O'Halloran dated 4 March. It appears from the email that Mr O'Halloran had been asked to inform Professor Howard about Mr S's finances, which he did in the following terms:

Professor Howard's fourth report was based upon a further examination of Mr S carried out at his home on the morning of 13 March. As on the previous occasion, Mr S seemed "animated and bright", but again he had no recollection of their previous meetings.

The whole of this report is important, and I see no alternative to citing most of it in full:

(i) The joint statement of Professor Howard and Dr Barker

This is a brief statement, signed by Professor Howard on 13 April 2010 and by Dr Barker on 19 April, recording that they conferred by telephone on 21 March to establish the areas on which they agreed and disagreed.

They agreed that Mr S had a dementia, most probably caused by alcohol use and cerebrovascular disease, which was characterised by a profound impairment of his memory, although he also had impairments of his language abilities, motivation, concentration and judgment.

They disagreed about the impact of his cognitive impairment upon his capacity to decide whether or not to continue the Chancery proceedings or to enter into a compromise of them:

(j) Professor Beaumont's report dated 3 June 2010

I come finally to the report of Professor Beaumont, which was obtained on behalf of R pursuant to an order which I made on 31 March 2010. Although I had never originally intended that there should be such a proliferation of expert evidence before the court, it seemed to me that fairness required that R be given an opportunity to seek a further report from an expert of similar standing to Professor Howard, and especially so because of the unilateral action that Mrs D's legal representatives had taken in obtaining Professor Howard's third and fourth reports. Although the circumstances in which those further reports had been obtained were unsatisfactory, their content was clearly very material to the issue before the court, and they could not simply be disregarded.

Unlike Professor Howard and Dr Barker, who are both clinical psychiatrists, Professor Beaumont is a clinical psychologist and neuropsychologist. He is currently head of the department of clinical psychology at the Royal Hospital for Neuro-Disability, where he has been based since 1992. Before then he was professor of psychology at the University College of Swansea, having previously held academic appointments in Cardiff and Leicester. He is the author of a number of books on neuropsychology, including one widely used general text, and has written or contributed to over 100 chapters and papers in learned journals. His clinical experience extends over 40 years.

Professor Beaumont examined Mr S at his home on 26 May. Their interview lasted for about one and a half hours, during which Mr S showed no evidence of fatigue and gave no reason to doubt the genuineness of what he said. Professor Beaumont therefore concluded that the results of his examination were both reliable and valid.

At the beginning of his report, he summarised his conclusions as follows:

In the course of his examination, Professor Beaumont administered a number of psychological tests to Mr S. These tests were:

Professor Beaumont described Mr S's performance in these tests in section 4.2 of his report, as follows:

In the next section of his report, headed "General issues regarding [Mr S's] mental capacity", Professor Beaumont summarised the relevant provisions of the 2005 Act (the only one of the experts to do so) and commented that very helpful advice is provided in the Code of Practice of the Act with regard to the requirement that a person be given "all possible assistance" to enable him to exercise mental capacity. He continued:

In an earlier section of his report, Professor Beaumont had given his opinion on Mr S's orientation and concluded that he lacked correct orientation for date, place and current affairs.

Professor Beaumont then turned to the five specific questions which had already been considered by Dr Barker and (in his fourth report) by Professor Howard. Once again, I need to cite his evidence almost in full, although I will simplify the headings:

The expert evidence: (2) Cross-examination

I will say at once that I am satisfied that all three of the experts who gave oral evidence (Professor Howard, Professor Beaumont and Dr Barker) did so clearly and dispassionately, and that they were doing their best to assist the court. Mr Marshall suggested at one stage in his cross-examination of Professor Howard that, once he had formed his original clinical judgment of Mr S's capacity and expressed it in his second report, he did not consider the question afresh in his third and fourth reports, and they were almost bound to be consistent with his first judgment. Professor Howard disagreed, and said that he would have been ready to change his view if, for example, he had found that Mr S's frontal lobe functions were seriously impaired. He said, and I accept, that he is always perfectly happy to acknowledge that he might have made a mistake.

My favourable impression of Professor Howard's candour was reinforced by his rather disarming readiness to accept, and to apologise for, certain deficiencies in his reports when they were pointed out to him by Mr Marshall. Thus he accepted that it would have been helpful if he had somewhere made specific reference to the four requirements in section 3(1) of the 2005 Act. He agreed that the question of capacity is both decision specific and time specific, and accepted, with an apology to the court, that he had nowhere identified the specific decision by Mr S which he was being asked to evaluate. Although he was familiar with giving expert evidence, having done so about eight or nine times before, he had taken no steps to seek fuller instructions for his second report than the brief email sent to him by Hunters. This meant, for example, that he had never read the particulars of claim in the Chancery proceedings, or (I infer) the defence. Indeed, it turned out that he had never read the particulars of claim before they were shown to him in the witness box. Under some pressure from counsel, Professor Howard agreed that his understanding of the nature of the claim was very limited when he saw Mr S in June 2009. He did not know the number of cheques which had been written by Mr S in favour of Mrs D, nor (at that stage) did he know the amount of the largest single cheque. All that he had established in his discussion with Mr S on that occasion was that the gifts had amounted to "several hundred thousand pounds", which he agreed could have meant little more than £200,000.

When it was put to Professor Howard that, without the basic information about the precise number and amount of the cheques, he was in no position to discuss with Mr S his understanding of the information relevant to his decision, Professor Howard said that they were able to talk about the "order of magnitude" of the sums involved, and that the actual amount (approximately £549,000) was in fact consistent with his references to "several" hundred thousand pounds. That may be so, but it seems clear to me that Professor Howard's understanding of the nature of the case and the sums involved was necessarily vague and imprecise when he interviewed Mr S and subsequently prepared his second report. It must be remembered, in this context, that his first report in April 2008 had been prepared some nine months before the Chancery proceedings were begun in January 2009. He knew, because Hunters had told him, that the claim was one to recover the gifts on grounds of undue influence, but he accepted that in his conversation with Mr S he did not discuss the question of undue influence, and what it might mean, at all. The cross-examination at this point continued:

In the next section of his cross-examination, Professor Howard accepted that he did not know in June 2009 what proportion of his assets Mr S had given away. All he knew was that Mr S had disposed of practically all his liquid assets, and that the assets which he continued to own were his home and his pensions. He therefore did not know that the total amount of the gifts was almost exactly double the value of his home. Thus, when he asked Mr S how he would divide a fortune of £1 million between Mrs D and his daughters, and was told that he would want to leave Mrs D £500,000, he did not appreciate the significant difference between this example (where Mrs D would receive twice the amount each daughter received) and what actually happened (where Mrs D was given approximately four times the amount he will be able to leave to each daughter). The following exchange is again revealing:

When counsel put it to Professor Howard that the first test in section 3(1)(a) had not been satisfied in June 2009, because Mr S did not have available to him the basic information that was relevant to the decision he had to take, Professor Howard merely said:

A little later he said, in relation to the balancing exercise that Mr S had to perform in reaching a decision:

He agreed that it would have been helpful to the court if his report had set out the information and data provided to Mr S, together with a description of Mr S's understanding of that information, and if he had then proceeded to consider with Mr S whether he was able to balance those various factors and come to a conclusion. Professor Howard apologised if he had "not been sufficiently detailed", and said:

Moving on to his third report, Professor Howard agreed that he should have recorded the instructions which were given to him in conference. He apologised, once more, for not following the basic obligation of an expert witness to disclose the substance of his instructions and the circumstances in which they had been received. He explained that the issue of frontal lobe impairment was something which Dr Barker had raised, and which he (Professor Howard) had neglected to address specifically in his earlier examination, so the purpose of his third report was to remedy this omission.

In the course of questioning about his third report, Professor Howard said that his findings had been within the normal range, but added, without prompting, that there is a difference between the kind of "bedside testing" that a psychiatrist would use and the structured tests which a chartered or clinical psychologist would administer. He said a little later that another way of testing a patient's capacity is to make a more general assessment of his ability to reason in discussions and arguments with him about other things. Professor Howard had made such an assessment on the basis of his discussions with Mr S about such matters as the progress of his career, his relationship with his wife, and ethnic tensions in Fiji. These discussions showed, in his view, that "the hardware for reasoning" was present.

Professor Howard accepted that the administration, evaluation and analysis of tests administered by neuropsychologists, such as the WAIS-III test, was a highly skilled procedure, and that he had not been trained to administer such tests. He emphasised the different approach of a psychiatric neurologist, like himself, from that of a clinical psychologist, like Professor Beaumont. The bedside tests which he administered were not centrally administered or standardised, and were very individual:

The tests which Professor Howard had administered were ones which he had used six or seven times a week over the last ten or fifteen years.

In relation to the conflicting results recorded by Professor Beaumont and himself for the CET test, Professor Howard accepted that he did not carry out the full test, but confirmed that Mr S had given the answers recorded in his report, and that "these seemed like appropriate and sensible estimates". He agreed that there was no independent method of validating his results, and described them as a cross-check which confirmed the overall impression he had gained earlier. More generally, he agreed that his approach was "pretty broad brush", and acknowledged that Professor Beaumont was the expert in the administration of standardised tests. He added that it is often difficult to interpret the results of such tests where the patient, like Mr S, has a profound memory disturbance.

In relation to his fourth report, Professor Howard confirmed that he had explained to Mr S the figures relating to his finances which Hunters had provided to him. However, Professor Howard had still not read the particulars of claim. His explanation for Mr S's repeated surprise when reminded of the size of the gifts was merely that he had forgotten how big they were. He relied on Mr S's spontaneous statement to him that £549,000 was about twice the value of his house as an indication that he had understood both the amount of the gifts and their value in relation to his other main asset.

In re-examination, Mr Staunton reminded Professor Howard that when he prepared his first report, in April 2008, he had seen the reports of Dr Powell and Dr Cook, and would therefore have been aware that the total amount of the gifts to Mrs D was over £500,000. I comment that this is correct, but there is still no indication in Professor Howard's second report that he supplied this information to Mr S, or ensured that he understood it. On the subject of memory, Professor Howard agreed that there is a distinction between working or short-term memory on the one hand and longer term or semantic memory on the other hand. He said that Mr S's semantic memory was "very, very poor", and that this could result from difficulty either in posting information to the semantic memory or in its retrieval, or from a combination of both causes. He said that in his opinion Mr S could hold information in his working memory "for a period of up to a couple of minutes", but beyond then he would lose it because of inability to put it into his semantic memory. In addition, if he was distracted by being given other things to hold in his working memory, that would displace the information he was already holding.

I now move on to the cross-examination of Professor Beaumont. At an early stage, Mr Staunton asked him whether, on the assumption that all of the factual observations in Professor Howard's third report were accurate, this would show that Mr S's ability to reason was well preserved. Professor Beaumont disagreed, for two reasons. First, there was further and more valid evidence about Mr S's reasoning which was relevant to the issue, and was not taken into account in this report, and, secondly, Professor Howard had failed to appreciate the degree to which Mr S "gives relatively automatic answers in a social context". Enlarging on this second point, Professor Beaumont said this:

Professor Beaumont went on to say that recognition of this tendency is a matter of clinical judgment, but Mr S was extremely repetitive in the limited set of responses which he gave under questioning or in general conversation. Professor Beaumont accepted that he had not made this clear in his report, an omission for which he in turn apologised.

When questioned about the religious views which Mr S had expressed to Professor Howard in January 2010, in the context of the recent earthquake in Haiti, Professor Beaumont accepted that they showed a patient whose ability to reason was, to that extent, preserved. He added, however, that this could still be compatible with damage to Mr S's frontal lobes, because they form a very extensive and complex part of the forebrain and serve a number of different functions.

Professor Beaumont accepted that Mr S had good retained social skills, as exemplified by his asking Professor Howard whether he would mind if he smoked a cigarette in his presence.

In relation to the different tests applied by psychologists and psychiatrists, Professor Beaumont accepted that bedside tests of the kind carried out by Professor Howard can be an acceptable method of determining whether a patient's ability to reason is intact. He did not seek to disagree in any way with Professor Howard's clinical opinion, but pointed out that in one of the tests administered by Professor Howard (letter fluency) he had allowed proper nouns as valid responses, although it was normal to disallow them, and if the proper nouns were disregarded Mr S's response would no longer fall within the normal range. With regard to the impact of severe memory impairment on the tests applied by psychologists, he said that it could not be entirely eliminated, but the tests were constructed in a way which either minimised its impact on performance, or else specifically recognised and incorporated it. So, for example, within the WAIS test there were a number of separate indices, one of which was for working memory, which could be scored separately, and would allow performance in other areas of intellectual ability to be assessed without contamination by memory loss.

Professor Beaumont agreed that Mr S had performed "quite well" on the proverbs test carried out by Professor Howard, although he said that the test was no longer used by psychologists because it was not felt to be valid due to its enormous educational loading.

In relation to the "similarities and differences" test, Professor Beaumont thought, rather unfairly in my view, that the answers given by Mr S to Professor Howard had been "concrete" responses describing the objects rather than linking them at a higher level of abstraction. However, he did not question Professor Howard's findings or his clinical ability. Professor Beaumont attributed the difference between his conclusions and those of Professor Howard mainly to the different nature of the tests that they carried out, but also to the rather different ways in which they interpreted Mr S's "natural discourse and his natural interaction". Unsurprisingly, Professor Beaumont preferred the tests used by his own profession, which he felt provided "a more valid way" to determine the issues. In relation to the second difference, Professor Beaumont very fairly noted that Professor Howard had had the opportunity to discuss a wide range of topics with Mr S, over a long period, whereas his own priority had been to administer a number of formal tests, which very much restricted the time available for more general conversation. Nevertheless, when he did discuss general matters with Mr S, and in particular when he put to him the same questions that Mr S had considered with Professor Howard, he found that Mr S provided a much more restricted range of answers than when Professor Howard had interviewed him. At this point, Professor Beaumont returned to the theme that Mr S has a number of set phrases which he tends to use habitually, such as "I did what I did and that's an end of it", which Mr S had said to him a number of times. When asked what he concluded from this, Professor Beaumont replied:

Professor Beaumont gave as another example of a repeated phrase used by Mr S his expression that "[Mrs D] touched me very deeply". He added that the point of such responses was that they were socially quite helpful to Mr S in that they prevented any further discussion of his reasons for having acted as he did.

Professor Beaumont rejected the suggestion that fatigue might be the explanation for Mr S's poor performance in the tests which he administered. He said, and I would readily accept, that after forty years of experience seeing a large number of clients every week he had learnt to judge whether they were fatigued or not.

Professor Beaumont thought that Mr S's expressions of personal indifference and fatalism about his future might be a result of frontal lobe lesions. It may be a symptom of such damage that a person becomes indifferent about his own future, and becomes "relatively emotionally flat". When it was put to him that this might simply reflect Mr S's established character, Professor Beaumont replied that it would if there were a lifetime history of Mr S acting in this way, but in the absence of any clear evidence about his previous character and personality the probability was, in his view, that this behaviour should be attributed to an abnormality of the frontal lobes. It was, however, impossible to know which aspects of the frontal lobes had been affected, because there had been no physical imaging or accurate neurological examination of Mr S in the recent past.

On the issue of Mr S's ability to reason, it was put to Professor Beaumont that the three scenarios discussed by Professor Howard with Mr S in his fourth report, and the ability to reflect on his position which he displayed on that occasion, were incompatible with the severe damage to his reasoning ability which Professor Beaumont had diagnosed. Professor Beaumont had two answers to this. First, he made it clear that his reference to a severe degree of disability reflected the fact that Mr S had started off as a very able individual. So a person of superior ability, like Mr S, would only have to fall to low average to have a severe deficit. Secondly, however, Mr S's performance was in some respects not merely in the low average range, but actually abnormal. In this context Professor Beaumont drew a distinction between Mr S's preserved skills, which he could still employ to good effect, and his reasoning about novel situations, in which he was in Professor Beaumont's view severely impaired. In this connection, he did not think that there was anything novel about Mr S's consideration of the role of God in the Haiti earthquake. His reflections were of a commonplace nature, and probably drew on his premorbid experience. In relation to the three scenarios which Mr S had discussed with Professor Howard, Professor Beaumont again disagreed that these were truly novel situations, because Mr S had already discussed the issues with Professor Howard before the specific scenarios were put to him. In other words, he had been primed about the topic.

Professor Beaumont was examined at some length about the specific tests which he had administered to Mr S. In my view Mr Staunton made no significant impact on the reliability of Professor Beaumont's methodology or conclusions. When asked to explain the difference between his results and those obtained by Professor Howard, he said that Professor Howard was working from a psychiatric perspective, and "I simply have to say that my test results are assessed against established normative samples and therefore should be regarded as having a higher level of validity". A little later, he said that in his view the results obtained by psychologists and neuropsychologists constituted scientific data and were not merely matters of opinion. He accepted, however, that this was not the end of the exercise, because the data still had to be interpreted and other things had to be taken into account:

Professor Beaumont explained the nature of the "rule shift" test which he had applied. The patient is given a booklet with 20 pictures of black and red playing cards in random order. The first rule, written in large print on a card to which the patient can refer, is: "Say yes to red and no to black". They then go through the booklet, as slowly as the patient wishes. On this first test, Mr S made no mistakes at all. The rule is then changed, and another card is placed before the patient which now says: "If the card is the same colour as the last one say "yes", if not say "no"." On this second test, Mr S made 10 mistakes, whereas a normal performance would allow only 2 or 3. Professor Beaumont was asked whether he was satisfied that Mr S had been able to read the print on the second card. Although Mr Staunton pressed him on this point at some length, I am satisfied that Mr S was able to read the card, and that somebody of Professor Beaumont's clinical experience would have noticed if he was not.

Professor Beaumont readily accepted that Mr S had some ability to reason, and that he should be given assistance to help with his poor memory. It was then put to him that, since Mr S consistently comes to the same conclusion that he does not want the money to be recovered, it must follow that he is reasoning his way to that conclusion, and that if he were irrational one would expect inconsistent answers on different occasions. Professor Beaumont disagreed, and said that a person with severe frontal lobe damage would often make consistent decisions based upon quite trivial criteria. He then gave a hypothetical example related to the present case. If the only thing that made sense to Mr S was that he did not want the embarrassment of Mrs D losing the money, that would always lead him to produce the same response. But his reasoning would not be sufficient, because it would not involve reasoning about all the other aspects of the case.

At the end of his cross-examination, Professor Beaumont was asked how he was able to gauge whether the responses given to him by Mr S in relation to the three scenarios were simply stereotypical and not his genuinely held view. The answer was:

I come finally to the evidence of Dr Barker, which with no disrespect to him I will deal with rather more briefly. In general, I was impressed by the very sensible and nuanced answers which he gave to questions, and in my view the evidence of his written report remains substantially intact.

Dr Barker accepted that some reasoning was to be found in the views expressed by Mr S, but remained firmly of the view that he lacked capacity to decide whether the Chancery proceedings should be continued. He naturally placed considerable emphasis on the wildly conflicting, and contradictory, statements that Mr S had made during their interview about the amounts which he had given to Mrs D and the value of his assets. He also stressed his apparent inability to understand simple fractions or proportions, and the way in which Mr S appeared to react with equanimity whether he thought that the amount he had given was a matter of a few hundred pounds or between £150,000 and £200,000. He added that Mr S sometimes said he was surprised about figures, but it never really seemed to register with him. He described the self-contradictions by Mr S within the space of a few minutes, or even seconds, as astonishing, and thought that there was evidence of impairment in his working memory as well as his long term memory.

Dr Barker agreed that Mr S still had good social skills, and that he was polite and sensitive to others. However, he had only limited awareness of his own position, and retained only some of the executive functions of the brain. The picture was not black and white, and a balanced overall assessment had to be made.

It was put to Dr Barker that the letter which Mr S had written to R in July 2000 provided only a slender basis for the conclusion in paragraph 3.13 of his report, where Mr S's current attitude was said to be "hugely out of keeping" with the approach demonstrated by his earlier letters. He agreed that the letters exhibited to R's witness statement were incomplete, and that apart from the letter addressed to R it was unclear who the recipients were; but he stood by the view which he had expressed, and took the view (reasonably in my opinion) that the keen interest which he then took in his daughter's financial affairs naturally suggested that he would then have taken a similar attitude to his own affairs.

Like Professor Beaumont, Dr Barker was unimpressed by the capacity for reasoning evinced by Mr S's comments to Professor Howard about religion, suicide and current affairs. Dr Barker said that he met many old people who thought like that, and religious views of this nature were often the product of long-embedded beliefs rather than a conscious process of reasoning. With regard to his possible future needs for care, Dr Barker doubted whether Mr S was really able to evaluate the position, and whether he was really aware quite how basic the level of care was in some homes that he (Dr Barker) had seen.

In general, the most that Mr Staunton was able to extract from Dr Barker was that many of his observations could have had an alternative explanation that was compatible with capacity. The problem with this approach, in my view, is that it does not allow for the all-important element of clinical judgment which led Dr Barker, as a very experienced consultant psychiatrist, to conclude that Mr S lacked capacity.

In answer to questions from Mr Marshall, Dr Barker said that he had been unusually impressed by Professor Beaumont's report, and he was reassured by the fact the Professor Beaumont had adopted a dual approach, relying on his clinical judgment as well as the cognitive testing in which he had special expertise.

Mr Marshall also explored with Dr Barker certain other inconsistencies in the views which Mr S had expressed. For example, Mr S had said to Dr Barker that it would be R's responsibility to make provision for his future care, and if there was any shortfall she would see to it. By way of contrast, Mr S told Professor Beaumont six months later that he would just take pot luck, and that he would accept it even if he found himself in very unsatisfactory accommodation. Dr Barker agreed that there was an inconsistency, although he thought that one could not conclude very much from it. He also agreed that there was an apparent inconsistency between Mr S's statement to Professor Beaumont (recorded in his notes, not his report) that he was "not a religious man" and the discussion which he had had with Professor Howard in January 2010. Dr Barker commented that this was curious, because religious beliefs tend to persist over time.

In conclusion, Mr Marshall referred Dr Barker to section 3 of the 2005 Act and asked whether his conclusion was based more on lack of understanding of the relevant information or on inability to use or weigh that information as part of the decision-making process. Dr Barker replied that he was satisfied that Mr S lacked capacity on the latter ground. He was uncertain whether he also lacked capacity on the former ground, although he thought that his understanding was also impaired. Mr Staunton explored this point a little further with Dr Barker in re-examination, which led him to express the view that, on balance, he considered that Mr S was probably unable to understand the relevant information.

The expert evidence: (3) Discussion and conclusions

I begin with the question whether Mr S is able to understand the information relevant to the decision which has to be made. I have already discussed the nature of that decision in paragraphs 42 to 47 above, and concluded that Mr S must be able to understand, as a minimum, the nature and extent of the relationship of trust and confidence which he arguably reposed in Mrs D, the extent to which it may be said that his gifts to her cannot readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on her to rebut any presumption of undue influence which might have arisen. I have also held that, since her relationship with him is still subsisting, the court will need to scrutinise with particular care whether Mr S is able to stand back from the impugned transactions with sufficient detachment truly to understand the nature of the claim.

If I have correctly identified the nature of the decision to be made, and the information that Mr S would need to understand in order to make it, it seems clear to me that he lacks the necessary capacity to do so. I agree with Professor Beaumont's assessment in paragraph 4.4A of his report that Mr S "has only an incomplete, partially incorrect, and limited understanding of the nature of the current proceedings". In particular, he has little understanding of the value of money, and without prompting he has no idea at all of the size of the gifts which he made to Mrs D. At times he will hazard the view that he gave her only a few hundred pounds, but at other times he will suggest a figure ten or even a hundred times larger, and he is also prone to contradict himself within a very short space of time about the amount of the gifts, without any apparent awareness of the disparity or any recollection of what he has just said: see, for example, Dr Powell's report (paragraphs 51-2 above) and Dr Barker's report at paragraphs 2.2.9 and 2.2.14. In cross-examination Dr Barker described these disparities and contradictions as "staggering" and "remarkable". I agree.

Thus at the most basic level Mr S has no understanding of the amounts of money at stake unless he is told what they are. Nor can he explain, except in the most general terms, why he wished to make the gifts, or why he thinks that there might be a valid claim to recover them. In principle, these deficiencies could be made good by the provision of the necessary information to him in simple language; but even then I do not think that he could retain the information in his mind for long enough to assimilate and make use of it. In view of the profound impairment of his semantic memory, the retention would have to be in his short term memory alone. But in the light of the tendency to self-contradiction which I have already noted, and Dr Barker's opinion that there may also be a clinical impairment of Mr S's short term memory, I have no confidence that he would be able to retain the necessary information for long enough to understand it in any meaningful sense. As I have already said, the decision is a complex one which requires a good deal of detailed information and self-awareness. I was struck in this context by a comment made by Professor Howard in re-examination, when he said he thought Mr S could "hold information in his working memory for a period of up to a couple of minutes, but beyond that period, because he is not able to put it in to his semantic memory, he loses it". In my judgment a period of two minutes at the most cannot possibly be long enough for a proper understanding of all the information relevant to the decision, let alone for an evaluation of the issues in the Chancery proceedings.

A related issue is whether Mr S's mental impairment is confined to his severe memory loss, or whether it extends more widely. In my judgment Dr Barker performed a valuable service by drawing attention to the possibility that Mr S may be suffering from damage to the frontal lobe of his brain, and pointing out that symptoms of such damage "are often clinically overlooked because they are more complex to elicit". The relatively simple tests which he administered clearly indicated to him a significant degree of frontal lobe abnormality: see in particular paragraph 3.9 of his report. This indication was then reinforced by some of the tests performed by Professor Beaumont: see paragraph 4.2 of his report, where he says that Mr S's performance on the Semantic Fluency subtest of RBANS was "possibly associated with some abnormality of his frontal lobes", and that his performance on the Rule Shift test was "a further sign that there may be some frontal lobe disturbance". Against this I must set the evidence of Professor Howard's third report, where he concluded that Mr S's frontal lobe functioning fell within the normal range. The evidence is inconclusive, but on balance I incline to the view that Mr S does suffer from a significant frontal lobe impairment in addition to his profound memory loss.

Before I leave the question of Mr S's understanding of the relevant information, I need to say a little more about Professor Howard's reports. In his second report, he addressed the question whether the Chancery proceedings should have been issued. As a preliminary comment, it should be noted that this is not quite the same as the question whether they should now be continued, although rather surprisingly Professor Howard seemed unable to appreciate the distinction between the two questions when it was put to him in cross-examination. In that report, he expressed the opinion that, although Mr S's memory was extremely poor, if prompted "he quickly recognises the facts and issues involved". Professor Howard went on to say that, with prompting, Mr S could recall the gifts and his reasons for making them, the fact that R was trying to recover the money, and the existence of the Chancery proceedings. However, it emerged from Mr Marshall's skilful cross-examination that this opinion was based on only a superficial acquaintance with the case on the part of Professor Howard, which he readily acknowledged. I have already referred to the relevant passages in his cross-examination, and I will not repeat them. It is, in my judgment, a fair criticism to say that Professor Howard should not have expressed a clear opinion in these terms without also making clear the limited nature of his own understanding of the facts and issues, and the precise steps which he had taken to remind or inform Mr S about them. A related, and equally valid, criticism is that he failed to comply with the mandatory requirement in the Practice Direction to Part 15 of the Court of Protection Rules 2005 to include in his report "a statement setting out the substance of all facts and instructions given to [him] which are material to the opinions expressed in the report or upon which those opinions are based". An acceptable alternative, as the Practice Direction makes clear, would have been to annex his instructions in so far as they were in writing. None of these elementary steps was taken, and the result (unintended I am sure, but nevertheless potentially very worrying) is that the report rests on a much flimsier foundation than a reading of it would naturally suggest. The rules are there for a good reason, and if they are not complied with a report, even from the most eminent of experts, is likely to lack the transparency and objectivity which the court rightly insists upon in expert evidence. I do not wish to be too critical, because the report appears to have been produced under some time pressure (although I must say it is not clear to me what the urgency was), and because Professor Howard and Hunters may have thought of it essentially as a supplement to the first report which he had produced in April 2008. Nevertheless, I have to say that there is substance in at least some of the severe criticisms of this report which Mr Marshall advanced in his closing submissions.

I am afraid that Professor Howard's third and fourth reports are also open to some criticisms of a similar nature. I have already referred to the unsatisfactory way in which they were produced, apparently on the basis of oral instructions given at conferences with counsel, and without prior authority from the court. As before, there is only a most perfunctory statement of the nature of those instructions in the body of the reports, and no proper statement of the materials upon which they were based. The overall result of these deficiencies is that I have had to treat Professor Howard's evidence with considerably more reserve than would normally be the case. I make it clear, however, that I do not question his personal integrity or good faith in any way, I fully accept the accuracy of his record of what Mr S said to him during their interviews, and I have the greatest respect for his skill and experience as a clinical psychiatrist. It is precisely for those reasons that I have found this a difficult and worrying case.

I now turn to the question whether Mr S is able to use or weigh the relevant information. In view of the conclusion which I have already reached about his inability to understand the information, I can deal with this question comparatively briefly. All of the matters which I have already mentioned on the issue of understanding apply, with equal or greater force, to the question whether he is able to use or weigh the relevant information as part of the decision-making process. In addition, I have the clear and firm evidence of both Professor Beaumont and Dr Barker that Mr S cannot satisfy this requirement, even on the assumption that he does understand the relevant information. Their evidence on this part of the case was not significantly shaken in cross-examination, and I have the added comfort of knowing that they agree in their conclusion although they approach it from the perspective of their different disciplines as a psychologist and a psychiatrist. I do not wish to express any view on the question whether the avowedly scientific tests administered by a psychologist have intrinsically greater value than the bedside tests and clinical insights of a psychiatrist. Both professions have much to contribute when the subject matter is something as profound and mysterious as the workings of the human brain. For present purposes, the important point is that both Professor Beaumont and Dr Barker are in agreement.

The high-water mark of the case for Mrs D is, I think, to be found in Professor Howard's fourth report, and in his record of Mr S's responses to the three scenarios which Professor Howard put to him. There is no doubt that these responses show at least some ability to reason and some appreciation of the likely consequences for the three protagonists in each situation. This impression is reinforced by the clarity with which Mr S is still able to express himself and his sophisticated use of language. Moreover, it is a record of an interview which took place as recently as 10 March of this year. In his closing submissions Mr Staunton rightly emphasised these passages, and submitted that they provide cogent evidence of Mr S's ability to consider and make decisions and thus provide a solid foundation for Professor Howard's conclusion. Furthermore, some of the deficiencies which I have noted in Professor Howard's second report had by now been made good, because Hunters had provided him with an accurate summary of Mr S's financial position and Professor Howard expressly says that he explained this to Mr S. Nevertheless, it should be noted that even at this stage Professor Howard had still not read the statements of case, and his appreciation of the issues in the Chancery proceedings may therefore still have been as limited as he acknowledges it to have been the previous June.

If this were the only evidence in the case, it might have been sufficient to persuade me that the challenge to Mr S's capacity should fail. However, it is only part of the total evidence, albeit a very important part, and I have to reach my conclusion on the basis of an evaluation of the evidence as a whole. For the reasons which I have already given, I consider that there are strong reasons for concluding that Mr S lacks the requisite capacity to use or weigh the relevant information. Although Professor Howard's fourth report has caused me to think long and hard about the soundness of that conclusion, it has not caused me to change my mind. There are a number of reasons for this. First, and perhaps most importantly, although Professor Howard gave Mr S details of his finances, there is no indication that he gave him any new or fuller explanation of the issues involved in the Chancery proceedings. Indeed, it is most unlikely that he did so, because the body of the report is confined to dealing with the five specific questions listed in my order of 20 October 2009, and at the end of the report Professor Howard describes the assistance which he gave to Mr S as "reminding him of the size of the gifts made to [Mrs D] and the presence and extent of his other assets and sources of income". This strongly suggests that the assistance was confined to financial matters, in which case Mr S still lacked much of the basic information which he needed to evaluate.

Secondly, I am struck, like Dr Barker and Professor Beaumont, by the stark contrast between the resigned and fatalistic attitude shown in Mr S's responses to Professor Howard and the keen and well-informed interest in financial matters which he had shown when writing to his daughter in 2000. It is possible that his attitudes to money and financial security have changed over the last decade, but it seems to me far more likely that his current fatalism is a reflection of his mental deterioration. In particular, I am very doubtful whether he has any true understanding of the difference that £550,000 might make to his ability to end his life in reasonable comfort and congenial surroundings if he needs to go into a care home. It is one thing to accept, in the abstract, that he would take things as they came with equanimity. It is another thing to appreciate the true cost of future care, the period for which it might be necessary, and the contrast between first class care homes and the type of inferior accommodation with which Dr Barker, for one, is all too familiar.

Thirdly, I think there is force in Professor Beaumont's observation that Mr S tends to have recourse to stock responses, that he often fails to offer an explanation for his stated position, and that his reactions are not those of a person of ordinary prudence. None of these points is more than an indicator, and I am of course well aware of the statutory principle that a decision is not necessarily made without capacity merely because it is an unwise one (see paragraph 39 above). Nevertheless, in the context of all the other evidence in the case I think that the probable explanation for these features of Mr S's current behaviour is that the deterioration in his mental faculties has left him unable to reason his way to a conclusion in a novel situation.

For all these reasons I am satisfied, on the balance of probabilities, that Mr S is unable to make the decision whether or not to continue the Chancery proceedings (or, if it becomes relevant, to settle them), because in terms of section 3(1) of the 2005 Act he is unable (a) to understand the information relevant to the decision, (b) to retain that information, or (c) to use or weigh the information as part of the process of making the decision.

This is not a conclusion which I reach with any pleasure. The philosophy of the 2005 Act is clearly that patients should, as far as possible, be able to make decisions for themselves; and I have little doubt that my decision will, at least in the short term, bring nothing but unhappiness to Mr S. I end by expressing the hope that, in deciding on the future conduct of the Chancery proceedings, R will have full regard to her father's wishes and feelings, and to the comfort and support that Mrs D provided to him at a time when he was still estranged from both his daughters. A trial of the action is likely to be a painful and damaging experience for all concerned, and I repeat my hope that the parties will, even now, be able to come to a settlement. I would add that, if the settlement were one that were relatively generous to Mrs D, that would surely accord with Mr S's wishes, and the court would probably need little persuasion to approve it on his behalf.

I must finally express my appreciation and thanks to counsel on both sides for their assistance in this difficult case.