Fay Collinson represented successfully PSG Trust Corporation Limited in PSG Trust Corporation Limited v CK; NJ [2024] EWCOP 14 which concerned whether to disclose the value of civil settlements to CK and NJ.
Mr Justice Hayden, sitting in the Court of Protection, considered existing conflicting authorities on the issue (EXB v FDZ [2018] EWHC 3456 (QB), PBM v TGT [2019] EWCOP 6 and DXW v PXL [2019] EWHC 2579) and provided useful guidance on how a Deputy should approach the issue of whether P should be told about their civil settlement or court award.
The Court considered three central questions:
(1) Should disclosure to P be regarded as automatic and as of right;
(2) Is disclosure a facet of management of P’s property and affairs, already determined to be a sphere in which P lacks capacity; and if not
(3) How should the capacity test be framed where the focus of concern is on P’s vulnerability?
Mr Justice Hayden accepted Fay’s submission that disclosure of the value of a settlement is a separate question which requires Deputies to consider whether P has capacity to decide whether to request the value of their settlements [paragraph 28]. He also accepted Fay’s submission that the information relevant to this decision is as follows:
The Court identified that disclosure of the settlement by CK and NJ to others could put them at risk of financial exploitation. The Judge held that this vulnerability formed part of the capacity assessment as well as best interests one [paragraph 25].
P’s ability to recognise, retain, and weigh their own vulnerability and the potential consequences of being told the value of her award, frames the scope of the decision to be made. Where P can do so, it is likely that the presumption of capacity under section 1(2) of the Mental Capacity Act 2005 has not been rebutted [paragraph 29].
The Judge emphasised that vulnerability must not be misconstrued for incapacity and that part of the court’s role involves accepting the risks that protected parties may be exposed to in order to protect and promote their autonomy [paragraph 29].
Next, Mr Justice Hayden concluded that, where P does lack capacity to decide whether to request information about their estate, it is within the authority of a property and affairs deputy to make that decision for them. A deputy does not need to make an application in every case, particularly where the decision is clear or common sense. There may, however, be cases in which, on a proper construction, it is ‘truly a welfare issue’. In these cases, the deputy should make an application for an extension of their authority.
Significantly, and in contrast to the position concerning deputies, the Court concluded that, where an attorney decides not to disclose information to the donor about the value of their estate, they must seek the Court’s authority to do so.
Finally, the Court observed that obtaining P’s views about the issue should ‘ordinarily be regarded as necessary’. He nevertheless endorsed the view of Saini J expressed in DXW that there may be cases where such an enquiry into P’s wishes and feelings would be counterproductive because it could ‘undermine the very protections which are being sought for the Claimant’s longer-term benefit’.
Mr Justice Hayden found that both CK and NJ lacked capacity to make the relevant decision. He held that it was in CK’s best interests to know the value of her award and that knowledge of the exact amount of the settlement in this case was unlikely to escalate her vulnerability significantly. He considered that CK’s family was a powerful protective factor. Conversely, he found that it was not in NJ’s best interests due to her striking vulnerability to exploitation, particularly from her brother.
The full judgment can be accessed here.
