In a recently published judgment, the Court of Protection considered the question of how a property and affairs deputy should approach the issue of whether to inform P of the value of their civil litigation settlement.
PSG TC Ltd v CK & Anor [2024] EWCOP 14 concerned an application by a PSG Trust Corporation (‘the deputy’), which acts as professional deputy for individuals lacking mental capacity to manage their property and financial affairs.
In his judgment, Mr Justice Hayden was conscious not to refer to the question as whether P had “capacity to be told” about the value of their settlement (the approach that Judges had previously taken), noting –
“I am uncomfortable with this formulation. It does not seem to me to capture the matter with sufficient clarity. In many respects, we have no control over what people tell us and, it follows, no decision to make. The essence of this is whether [P has] the capacity to understand the value of their personal injury funds and appreciate the extent to which wider knowledge of their assets may render them vulnerable. If not, a best interests decision requires to be taken as to whether they should be told the size of their funds”.
Counsel for the applicant submitted that, prior to the judgment, there was no guidance from the Office of the Public Guardian or the Court of Protection on how a property and affairs deputy should approach the issue in question. A hearing originally listed for 4 May 2023 was adjourned whilst enquiries were made of members of the Professional Deputies Forum as to how often the issue arose, the responses to which were considered by the Judge.
The approach to assessments of capacity is set out in statute, namely sections 1-3 of the Mental Capacity Act 2005. In particular, the relevant principles are as follows:
- All practicable steps must be taken to support P to make the decision
- There is a presumption of capacity, and the applicable test is the civil standard of proof
- Assessments must be specific to the decision in question
- A person is unable to make a decision if he is unable to understand, retain or use and weigh the information, or communicate his decision (by any means)
- A person lacks capacity if he is unable to do so because of an impairment of, or a disturbance in the functioning of, the mind or brain; and
- The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another
Having considered the relevant case law, Hayden J considered that three central questions arise in determining the matter, namely:
- “Should disclosure to P be regarded as automatic and as of right
- Is disclosure a facet of management of P’s property and affairs, already determined to be a sphere in which P lacks capacity (hence the appointment of the deputy; and
- How should the capacity test be framed where the focus of concern is on P’s vulnerability”.
He also expressed concern about “conflation of the capacity test with a best interests decision”, further noting that “it is crucial to disentangle P’s insight into how she might manage the knowledge of the size of the funds from any unwise decisions she might take when told the relevant figure. Vulnerability is not incapacity. Incapacity in this context is the inability to recognise this vulnerability”.
Summarising, in respect of when the decision is whether P wishes to request the value of her funds, the factors relevant to her capacity to make that decision are likely to include her understanding of:
- The nature of the information in question
- The risks of obtaining it
- The risks of not obtaining it
- The benefits of obtaining it
- The benefits of not obtaining it
Further, Hayden J noted “when assessing P’s capacity to take the decision, her ability, or the extent of her ability, to recognise, retain and weigh the above questions and specifically to recognise, retain and weigh her own vulnerability and its potential consequences, will frame the scope of the decision. It follows that if she does recognise, retain, and weigh these problems and vulnerabilities, it is likely that the presumption that her decision is capacitous has not been rebutted. Of course, none of this causes the identified vulnerabilities to evaporate, they remain, and they are real. However, the fact that she may make unwise decisions, in the future, which cause her to fall prey to exploitation, ultimately, to expose her, as we all must be to some degree, to the vicissitudes of life and human transgression. But the role of this court is to protect and promote human autonomy not to repress it with misconceived paternalism. A life wrapped in cotton wool is a restricted and diminished one”’.
Where P lacks capacity in relation to the subject matter, a best interests decision must be taken, and the Judge clarified that it is unlikely to be necessary for a deputy to make an application in every case, instead that it may be “clear, perhaps even just common sense”.
Turning to the individuals in question, Hayden J considered that both Ps lacked capacity to request information about the sum of their award and that (owing to the individual circumstances) that it was in the best interests of only one to have the value disclosed.
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