The Value of Money

How should a professional Deputy approach the question of whether to inform a personal injury claimant who is also a protected party of the value of his or her settlement or award?

Guidance can be drawn from the recent decision of Hayden J in PSG Trust Corporation Ltd and CK (1) NJ (2) [2024] EWCOP 14.

The essence of the issue is whether the protected party has the capacity to understand the value of their personal injury funds and to appreciate the extent to which wider knowledge of that might render them vulnerable?

If the answer to this question is no, a ‘best interests’ decision is required.

Judgment

The case involved two claimants in otherwise unconnected claims, but the common factor was the determination of the above question.

Although the claimant CK presented extremely well, that hid complex vulnerabilities including obliviousness to the intentions of others and a poor sense of self-preservation.  Previous issues had unfortunately arisen involving attempted financial abuse, which had required her close family to step in.

On the other hand, CK was good with numbers, understood the value of money and expressed a consistent wish to have the exact amount of the settlement confirmed to her. From this, combined with the fact that CK had a strong and protective family as well as assistance from a Deputy, the judge concluded that knowledge of the amount was unlikely to significantly escalate her vulnerability.

In respect of NJ, medical evidence confirmed that cognitive deficits present since the age of 3 months gave rise to difficulties with executive function and perceptual organisation, meaning she struggled with numbers and with understanding the relative value of money . 

In addition, due to a difficult childhood and past traumatic events, she struggled to form and maintain trusting relationships. There was also a history of financial abuse and a marked vulnerability to exploitation. Consequently, the judge was drawn to conclude that NJ did not have the capacity to understand or weigh the risk to herself if the sum of the award was disclosed to her.

A copy of the Judgment can be accessed here.

A Time for Change?

During the hearing it was acknowledged this issue – determining capacity to understand the value of the award if disclosed and potential associated vulnerabilities - is a predicament which Deputies regularly face but in respect of which it is thought there is no clear guidance.

Therefore the hearing had been adjourned for seven months to allow for enquiries to be made to evaluate the extent of the concern and, if possible, to identify current practice amongst professional Deputies. Having concluded these enquiries, Hayden J agreed with the submission on behalf of the claimants “that there is presently no guidance from the Public Guardian on how a Property and Affairs Deputy should approach these issues and further, no ‘concrete’ guidance … from the Court of Protection.”

Having surveyed members of the Professional Deputies Forum, the majority of the 11 responses received considered that the decision was and should be capable of being taken by the Deputy who should refer to the Court in cases of obvious difficulty or controversy. This broad approach was supported by Hayden J, who after observing that the role of the Court of Protection “is to protect and promote human autonomy not to repress it with misconceived paternalism” set out the following succinct guidance.

“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.”

Although the question at the heart of this case is not on entirely all fours with the subject matter of the recent consultation from the Civil Justice Council Consultation on Mental Capacity in Civil Proceedings, it is closely related to that thread of the consultation that speaks to the need for new procedures for certain issues of capacity. Whether the question in this case is taken forward as part of further activity following the consultation remains to be seen.

Gemma Quinn is a senior associate in the catastrophic and large loss injury team based in Manchester and head of the Court of Protection subject matter group.