Keeping Information from a Protected Party

When is keeping information from a protected party in his best interests and the right course of action for a Deputy appointed by the Court of Protection? In an unusual case, the Court of Protection made an order preventing the disclosure to the protected party – a road accident victim - of key information even though this interfered with his rights.

Court-appointed deputies have a legal duty under the Mental Capacity Act 2005 to involve a protected person (P) as far as possible in decisions made on their behalf. The principles of the 2005 Act include that:

“(3) a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

A recent ruling indicates the court’s approach to genuine concerns that disclosing information to P for the purpose of allowing their involvement might not be in their best interests. Unusually, P did not apparently want to know the information concerned. His deputy asked the CoP for an order preventing anyone with knowledge of the amount of the settlement award from disclosing the amount of it to P - even though this would substantially interfere with his Convention rights.

What’s the background?

P was awarded a significant personal injury settlement following a road traffic accident in which he was not wearing a seatbelt. He sustained significant and life-changing injuries including a severe brain injury. The settlement included provision for the appointment of a Deputy to manage the personal injury fund.

It was considered by his mother and his very experienced solicitor, that it would be in P’s best interests not to be told the amount of the settlement reached. In his own statement, P had said he did not want to know how much it was, as he would "probably end up spending it" and likened it to having just "won the lottery or something". On the evidence, he was consistent about not wanting to know the amount.

There was also evidence that on occasions when he was able to spend money, P had been impulsive. The CoP also heard evidence from P’s own neuropsychologist that constantly lives beyond his means, seeks to “spend money that he has in his head”, borrows money - and that knowing the settlement figure “is likely to distort his perception of his own means, and exacerbate his preoccupation over money.” Foskett J found that the evidence that it would not be in P’s best interests to know the amount of the award was overwhelming.

But this raised somewhat of a conundrum. Whether Foskett J could conclude on balance that P could not decide for himself whether he should be told the value of the award was difficult because, by definition, he “cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant”.

That said, P had made his views known without knowing the figure involved. Foskett J therefore took the view that a declaration as to incapacity in relation to this specific decision was justified. He therefore made an order declaring that P lacked capacity to make the decision, that it was in P’s best interests not to know the size of the award, and a declaration that anyone conveying such information to P would be unlawful.

Also, it would be for the Deputy to draw the attention of the order to anyone he knows has knowledge of the amount of the settlement.



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