PSG Trust Corporation Ltd v CK & Anor
Summary
Hayden J has returned to the question of what, exactly, the ‘decision’ in question is where the issue is whether a person with cognitive impairments in receipt of a damages award should be told the amount of that award. Previous judges who had looked at this had approached it on the basis that the decision was whether the person should be told. Hayden J, however, was uncomfortable with the phrase “capacity to be told,” because “[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 take.” Having traversed the authorities, and with the benefit of counsel for the applicant deputies in two cases where the issue had arisen, and the Official Solicitor as Advocate to the Court, considered that the real question was whether the person had capacity to request the value of the funds. The information relevant to that decision, he considered, was likely to include: (1) the nature of the information in question; (2) the risks of obtaining it; (3) the risks of not obtaining it; (4) the benefits of obtaining it; and (5) the benefits of not obtaining it. He continued at paragraph 29:
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, is, 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.
Responding to a request for further guidance as to such applications, Hayden J continued:
30. Where it is concluded that P lacks capacity then, inevitably, a 'best interests' decision must be taken. I do not consider that it is necessary for a deputy to make an application in every case. Sometimes, the decision will be clear, perhaps even just common sense. In some cases, however, it will be difficult and require resort to the court. In Re ACC [2020] EWCOP 9, Her Honour Judge Hilder was considering the authority to incur legal costs on behalf of P, conferred on a property and affairs deputy by the terms of a standard deputy order. At [§52], Judge Hilder considered to what extent a property and affairs deputy is authorised to incur costs on P's behalf in health and welfare proceedings. At [§52.5]:
"A property and affairs deputyship does not confer any authority in respect of welfare. If a welfare issues arises, there may be a body or institution more appropriately placed than the property and affairs deputy to make that application, at less cost to P".
Judge Hilder went on to conclude that, as a property and affairs deputy's authority extends to only property and affairs matters, they are not authorised to conduct health and welfare proceedings on behalf of P. The Judge makes the converse point:
"In contrast, where the contemplated litigation is not in the realm of property and affairs, there is simply no line to be drawn. A property and affairs deputy's authority relates only to property and affairs; It extends no further than meeting the deputy's responsibility to draw to the court's attention that there is or may be a welfare issue for determination by seeking directions as to how such (potential) issue may be addressed. Without such application being made and granted, the deputy proceeds at risk as to costs".
31. Miss Collinson submits that under the terms of the standard property and affairs property order (as here), the deputy has no power to make a decision that is one "predominantly affecting welfare". This, she contends, is primarily a welfare decision. I do not agree with this analysis. What is in issue is communication of the exact sum of a damages award. That strikes me as a property and affairs matter. The fact that welfare considerations flow from it does not change the nature of the matter. Many financial issues have welfare implications, taking out mortgages, finance agreements, sustaining an extensive overdraft. This view seems to me to be entirely consistent with Judge Hilder's observations, indeed, she uses the term "in the realm of property and affairs" which implicitly recognises that decisions in that sphere will sometimes have welfare implications. I do not believe, therefore, that it is necessary to extend a deputy's authority in every case. Neither, however, do I wish to be prescriptive. Precisely because the Court of Protection is such a highly fact-specific jurisdiction, it is perfectly conceivable that what might appear on the surface to be a Property and Affairs issue, is on a proper construction, nothing of the kind and truly a welfare issue. In these cases, an application can be made and a deputy's authority extended where appropriate.
In relation to the position where the question is whether an attorney should withhold equivalent information from the donor, Hayden J noted that:
32. […] A conflict of interest or a perceived conflict of interest might arise if the agent were to decide that the amount of P's funds under his control should not be disclosed to her. If an attorney under a Lasting Power considers that P should not be told the value of funds under his control, then the matter, Mr Holmes argues, requires to be referred to the Court for determination. I agree with this as, I understand, does the Official Solicitor. It has to be emphasised that the conflict of interest between the donor and donee of a Lasting Power of Attorney, identified above does not arise in the case of deputies who are appointed by the Court and not by P, required to submit annual accounts to the Public Guardian and subject to supervision.
On the facts of the cases before him, Hayden J found that both Ps lacked the capacity to request to see the value of their award, and that it was in the best interests of one to have the sum disclosed, but not the other.
Comment
There are definite shades of the JB decision in the judgment of Hayden J, not just the self-direction about the importance of identifying the decision and the relevant information, but also in the recognition of those with cognitive impairments as active agents – in the JB case, deciding to engage in sex, rather than simply consenting; here, deciding to ask about the value of their award, rather than passively receiving information if others decide to tell them.
The analysis of the blurriness of the distinction between property and affairs and welfare matters is also of interest, and self-evidently correct, even if, in relation to the disclosure of damages awards, it will require deputies to making their own judgment calls as to whether disclosure is clearly a financial decision with welfare implications, or whether it is, in fact, ‘nothing of the kind,’ but has in fact jumped tracks and is a pure welfare decision.
