To Tell P or Not To Tell P? A Court of Protection Conundrum
Under the Mental Capacity Act 2005, Deputies appointed by the Court of Protection have a duty to involve P, as far as possible, in the decisions being made on their behalf, or otherwise act in P’s best interests if it is not possible to involve them in the decision-making process.
So what happens when there is a conflict in the above principles whereby disclosing information to P to allow their involvement may not be in their best interests at all?
On 13 December 2018, Mr Justice Foskett of the Queen’s Bench Division was asked to consider this same question, which seems never to have been the subject of a reported case before, in the matter of EXB v FDZ & Ors  EWHC 3456 (QB).
P (or EXB in this case), the Claimant, aged 26, was involved in a road traffic accident during October 2013. P was a backseat passenger in a car being driven by the First Defendant, which collided with the Third Defendant and then into a tree. Unfortunately, P was not wearing a seatbelt at the time of the accident.
P sustained several injuries, including a fracture dislocation of the right hip, an injury to his right shoulder and a severe brain injury, causing difficulties in executive functioning and behavioural issues.
The settlement sum, which was designed according to P’s virtually full life-expectancy, loss of future earnings and extensive support needs, was significant. However, given his needs and the reduction in damages for contributory negligence, there was a heightened need for careful management of funds.
P’s mother (acting as Litigation Friend) and experienced Solicitor considered it not to be in P’s best interests to know the final settlement value. This was due to his fixation on money and his challenging behaviour. P’s Deputy sought a Court Order preventing any person with knowledge of the sum from disclosing this to P. It was recognised that this would substantially interfere with P’s rights, therefore Mr Justice Foskett sitting in the Court of Protection, requested assistance from an amicus curiae.
Foskett J reviewed in detail the evidence submitted to the Court by P’s practicing neuropsychologist, which stated that, “I know that if EXB knows that he has a specific sum of money he (a) perseverates over it and cannot move beyond thinking about what he’s going to spend it on, and (b) he will seek to spend money that he has in his head”. “It would, in my view, escalate his existing vulnerabilities to himself and his own actions. It would also escalate his vulnerability to others.”
“He, in my experience, constantly lives beyond his means. This situation is not mediated by the amount he receives. It results in him borrowing money, and him being in a seemingly unbreakable cycle of what he refers to as “owing money out”. There is a culture within EXB’s peer group of lending money to one another and helping each other out financially. Clearly there is nothing wrong with this per se, but there is clearly a risk of exploitation if there is a perceived imbalance within that group of their respective means.”
“In my opinion EXB is likely to conceptualise a crystallised figure as a pot of gold or lottery win. Upon the assumption that it is a substantial sum, it is likely to distort his perception of his own means, and exacerbate his preoccupation over money.”
Upon hearing evidence from P’s Solicitor, Litigation Friend, Neuropsychologist and video evidence from P himself, Foskett J was able to conclude that:
- P lacked the capacity to make a decision as to whether or not he should know the settlement figure;
- It was in P’s best interests not to know the settlement figure; and
- It would be unlawful for any individual with knowledge of the settlement figure to convey this to P.
This decision was particular to EXB and may not apply to all cases of this nature, however it has provided assistance for Deputies who may seek a similar Order from the Court of Protection in the future. Foskett J acknowledged that, although this decision was bound to affect the relationship the Deputy had with P, the Court Order would assist the Deputy, if P opposed the decision in the future.
Foskett J held that costs associated with issuing the Order would be borne by the Defendants in this case, as there would not have been a need to undertake the exercise but for their actions.
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