In the case of EXB v FDZ [2018] EWHC 3456 (QB) Foskett J, that was the question to be determined.
At age 26 EXB was involved in a catastrophic road traffic accident from which he acquired a traumatic brain injury. This injury was expected to be lifelong and meant that EXB would likely need support for the rest of his life; his life expectancy was unaffected. Critically an agreed reduction in damages for contributory negligence amplified the need for the final award to be carefully managed, to cover the costs of care and support for EXB's lifetime.
EXB's Deputy sought an order from the Court preventing any person who had knowledge of the final award from disclosing the amount of that award to EXB. The Deputy's motivation was to prevent EXB from "obsessively" trying to spend the funds that were required for his long-term care and support.
In coming to a decision, the judge took account of EXB's previous comments to his solicitor and the court that knowledge of the settlement figure would cause him stress and that he would "probably end up spending it". The judge also reviewed evidence from the Deputy as well as EXB's mother, case manager and treating neuropsychologist. The common observation from that evidence was that whilst at times EXB had a degree of understanding of the demand the cost of care had on the personal injury fund, he would not apply that understanding to his everyday decision-making.
EXB's neuropsychologist stated that "I know that if EXB knows that he has a specific sum of money he (a) preservates over it... and (b) he will seek to spend money that he has in his head". That, she felt, increased his vulnerability to his own impulses and to others. EXB's vulnerable position in relation to his peers had been noted by the other witnesses and his mother stated that it was unlikely that "he would be able to keep the size of the fund to himself if he knew".
Taking into account this evidence, Foskett J ordered the following declarations:
- that EXB lacked capacity to decide whether he should know the amount of the settlement award;
- that it was in EXB's best interests not to know the amount of the award; and
- that it would be unlawful for any person to convey that information to EXB.
Foskett J made it clear that this decision was specific to EXB. He felt that the general question of whether such a decision [not to inform P of the amount of a personal injury award] fell within the scope of a standard deputyship order could be answered at a later date. In this case, the judge felt particularly persuaded by the Deputy's argument that his role would be enhanced if he was able to tell EXB that the decision had been made by the Court rather than by himself. Conversely that role would be made a lot harder if EXB saw the Deputy as the decision-maker.
Comment
The dilemma evident here will be familiar to many Court of Protection professionals. Deputies will usually feel that P should know the amount of their personal injury award, so as to 'permit and encourage the person to participate' in any decision making process and therefore be compliant with section 4 of the Mental Capacity Act 2005 ('MCA'). However, the Deputy may also believe that such knowledge will have a significant negative impact on P's mental health. If they try to withhold that knowledge on their own (on the assumption that the deputyship order allows them to), this could lead to a material breakdown in their relationship with P and make their job much harder.
Knowing that, where necessary, a decision can be sought from the Court of Protection will give Deputies in that position some comfort.
It will be interesting to see, if another case is reported, whether the Court would consider making such an order where P has never acknowledged that knowledge of his award would not be in his best interests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
