Analysis
The applicant, who was the deputy for both respondents, sought the guidance of the court as to how to approach the issue of whether to inform a protected party (P) of the value of their civil litigation settlement. The essence of the issue was whether the respondents had 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 was required to be taken as to whether they should be told the size of their funds. At present there was no guidance from the Public Guardian as to how a deputy should approach these issues and, further, no concrete guidance from the Court of Protection. The Official Solicitor was invited to assist as an advocate to the court.
Held:
Sections 1-3 of the Mental Capacity Act 2005 (MCA) provided the statutory framework regulating the approach to assessment of capacity. As this was decision specific, the court was required to identify the correct formulation of ‘the matter’ in question. This in turn then led to a requirement to identify ‘the information relevant to the decision’, including information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision.
The question had been considered on three occasions, notably in EXB v FDZ [2018] when Foskett J made a novel form of order to the effect that it was not in the best interests of the claimant to know the amount of the settlement of his personal injury’s action in circumstances where the court had also determined that he lacked capacity to decide whether or not he should know the amount of the settlement. Ordinarily, eliciting the views of P should be regarded as necessary when resolving this issue, as it would serve to promote and protect their personal autonomy, which was woven into the philosophy of the MCA (though there would be occasion in some cases when such an enquiry could be counterproductive and undermine the protections which were being sought for P’s benefit)
Three central questions arose:
- (i) should disclosure to P be regarded as automatic and as a right;
- (ii) 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
- (iii) how should the capacity test be framed where the focus of concern was on the vulnerability of P.
As to the first question, P was in a position equivalent (or at least similar) to that of an agent or trustee in relation to a principal or beneficiary, both of whom have automatic rights to the provision of an account of assets from the agent or trustee. Restricting P’s access to that information, on any grounds, could be discriminatory by imposing constraints which did not exist for capacitous individuals. Further, it had the potential to restrict scrutiny of decisions taken by the deputy and, therefore, the opportunity for legal redress, as well as limit a wider range of other decisions such as the capacity to make a will or a pre-nuptial agreement. As there were various circumstances in which everyone, as capacitous individuals, may wish to know some parts (but not others) of particularly challenging information, such as in the context of a medical prognosis, it would be wrong to adopt an absolutist position as it risked subverting the autonomy of both the capacitous and the incapacitous, as well as colliding with the presumption of capacity which was the cornerstone of the MCA.
It was important to recognise that P’s vulnerability to exploitation was not solely an issue required to be addressed in the context of an evaluation of best interests; it was also a facet of the decision itself (ie did P have insight into their own vulnerability to recognise the potential consequences of being told the value of their award). Thus, it was crucial to disentangle P’s insight into how they might manage the knowledge and the size of the funds from any unwise decision they might take when told the relevant figure. This distinction was not sufficiently clear in EXB.
Broadly, the appropriate approach to these issues required an assessment of P’s understanding of the nature of the information in question, the risks of obtaining or not obtaining that information, and the benefits of obtaining or not obtaining that information. P’s ability to recognise, retain and weigh those questions, and specifically in relation to their own vulnerability and its potential consequences, would frame the scope of the decision. It followed that if the evidence demonstrated P was able to recognise, retain and weigh these problems and vulnerabilities, it was likely that the presumption of capacity to take the decision had not been rebutted. Where it was concluded that P lacked capacity then, inevitably, a ‘best interests’ decision must be taken; sometimes the decision would be clear as a matter of common sense and therefore it would not be necessary for a deputy to make an application to the court. In other more difficult cases, it would require resort to the court.
JUDGMENT MR JUSTICE HAYDEN: [1] These linked cases raise an important point. How should a Property and Affairs Deputy approach the issue of whether to inform P of the value of their civil litigation settlement? I am told, on behalf of the Applicant, PSG Trust Corporation Limited, the Deputy appointed for both CK and NJ, …Continue reading "PSG Trust Corporation Ltd v CK & anr [2024] WTLR 1051"