In the Capacity and Self-Determination Law 2016, Jersey has a framework which looks a great deal like the Mental Capacity Act 2005; the Jersey courts look to the caselaw in England & Wales to help them navigate some of the dilemmas that they are encountering in considering capacity and best interests. The decision in Re E [2026]JRC002 provides an example – I suggest – where the English courts might well wish to look south.
The case was brought by the Delegate (the equivalent of a Deputy) for a young man, E, seeking
the Court’s blessing of her decision to continue to pay pocket money to E should she deem it appropriate to do so. Described in that way the application would appear to be straightforward. However, the circumstances of the application are highly unusual, in that there is a distinct likelihood that E will use the pocket money given to him to purchase cannabis for his personal consumption, which is both illegal and adverse to E’s health.
As the Royal Court described it:
14. The Delegate is, understandably, concerned that funds advanced to E may be spent on cannabis, alcohol, or, potentially, other illegal drugs. The Delegate is similarly concerned that depriving E of funds could lead to a deterioration in his condition due to the loss of the small amount of independence it affords him and/or cause him to take detrimental steps, such as getting into debt, in order to procure cannabis and maintain his social life.
15. The issue was usefully summarised by Dr Stoffels in her report for the Court, dated 31 October 2025, in which she stated:
“Professionals are therefore faced with a profound ethical dilemma. On one hand, continued access to substances directly contributes to physical and psychological harm, psychotic relapse, and financial exploitation. On the other hand, strict prohibition or withdrawal of all funds has historically precipitated aggression, non- engagement, escalation of risk-taking behaviours, and covert substance seeking through unsafe channels.
From a clinical and safeguarding standpoint, the MDT and financial deputy are therefore required to balance two competing imperatives:
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- Protection from harm – minimising the risks of intoxication, psychosis, and exploitation; and
- reduction of immediate crisis behaviours – preventing escalation, aggression, or absconding when access is restricted too abruptly.
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The current approach, maintaining a limited weekly allowance (£50) under close deputy and staff supervision, does not imply endorsement of substance use but is instead a harm-reduction measure. It allows a degree of autonomy while containing the scale of potential damage and preserving engagement with care. This is a pragmatic, ethically proportionate response in an individual who lacks capacity to make safe decisions about drug use and finances, yet whose behavioural volatility and disinhibition make absolute restriction unsafe in practice.”
In the absence of Jersey precedent, the Delegate obtained advice from English Leading Counsel, Gideon Cammerman KC and Victoria Butler-Cole KC on criminal law and the English Court of Protection approach respectively. Having considered both the arguments put forward by the delegate and the Attorney General acting (in rough English analogy) as Advocate to the Court, the Royal Court concluded as follows:
71. As we have already noted, the Delegate was faced with having to make a difficult, and somewhat unusual, decision. She had to balance the risks of continuing to pay an, albeit modest, sum in pocket money in the knowledge that E might use it to purchase illicit cannabis, against the risk that stopping the pocket money would negatively impact his relationship with his carers and potentially lead to further acts of criminality by him.
72. We took into account, in particular, E’s wishes to continue receiving pocket money and thus to have some degree of independence and the steps being taken by his carers to seek to reduce the likelihood of him purchasing cannabis.
73. In the circumstances, having considered the evidence placed before us, we were satisfied that the decision taken by the Delegate was in E’s best interests. Had we been applying the Re S test [a test under Jersey law which had been applied previously when determining whether to ‘bless’ the decision of a delegate] we would also have approved the decision.
74. For the avoidance of doubt, our decision is not to be regarded as the Court determining that it is in E’s best interests to commit a criminal offence or declaring that illegal conduct is lawful.
75. We accordingly made the order requested, namely that:
“The Court approves the decision of the Delegate to advance funds to (“E”) in the form of pocket money, currently £50 per week, in circumstances where, in the exercise of the Delegate’s discretion, she considers it in E’s best interests to do so notwithstanding the risk that E may spend the funds advanced on illegal cannabis (or other illegal substances) and/or alcohol. The discretion of the Delegate shall continue to be guided by the advice of the Multi-Disciplinary Team responsible for E’s welfare, particularly Dr Martine Stoffels and Mrs Verity Boak (or such other professionals as may from time to time act in a similar capacity).”
Comment
As noted at the outset, this is a decision which I suspect – and hope – will be placed before the English courts in relatively short order, representing as it does a detailed analysis of a not uncommon dilemma, and an analysis which was properly tested through the role of the Attorney General. It also relied heavily upon, and commented upon, English case-law. Of particular relevance, I would suggest, is approach taken to the decision in EG & Anor v P [2024] EWCOP 80 (T3), a case about which we have previously expressed some concerns as regards its approach to the Proceeds of Crime Act. In a passage which clearly satisfied the Royal Court, Gideon Kammerman KC identified that the approach taken in EG had been
simplistic. The payer of the drugs debt in EG is unlikely to attract choate criminal liability under section 328 POCA. As set out above, the delegate’s funds (or for that matter the funds of the payer in the case of EG) are not criminal property in their hands. Those funds may well become criminal property in the hands of the drugs dealer, and an agreement furnishing him with funds that are later rendered criminal by his possession of them would lead to an offence by him, and therefore potential inchoate liability by their donor. As with the payer of a ransom, English law has long recognised a distinction between (1) doing an act for good reason, knowing that the outcome may be the commission of an offence by another, and (2) attracting liability by either agreeing with that other person to commit an offence or doing something that perhaps you don’t want to but is virtually certain to result in the commission of an offence.
