It is rare, but unfortunate, when a judge misdirects themselves as to the law, but in Bashir v Bashir  EWHC 1810 (Ch), Master Clark did so in the context of a complicated claim seeking the order of a property, and in so doing gave a distorted picture of the effect of a deputyship appointment.
The claimant lacked capacity to conduct litigation, and sued by his litigation friend, who was also his property and affairs deputy; the defendant, his sister, also lacked capacity and defended the claim by her litigation friend, who appeared in person. The underlying facts of the claim are complex, and for these purposes irrelevant, save and to the extent that they turned upon the question of whether there was a binding agreement between claimant and defendant. The claimant had suffered a brain injury in a criminal assault; his affairs were managed initially by his sister before she was removed as a deputy following an investigation.
Master Clark raised as a preliminary issue, of her own motion, the question of whether “even if the claimant had regained capacity by the date of the alleged settlement agreement, he could enter into a binding agreement whilst he remained under the jurisdiction of the Court of Protection.” She raised the issue at a case management hearing, but the claimant’s counsel made no submissions on it in her skeleton argument, and did not refer me to any authorities on the point in her oral argument.
Master Clark nonetheless considered it necessary to consider the point. Her conclusion was as follows:
44. Under the framework provided for by previous legislation (most recently, s.99 of the Mental Health Act 1983), it was held that once a patient had been placed under the jurisdiction of the Court of Protection, they could not make any valid lifetime disposition of their property, even in a lucid interval: Re Beaney  1 W.L.R.770 at 772, summarising the effect of Re Walker  1 Ch.160 and Re Marshall  1 Ch.284. This was because upon the making of the order their property had passed out of his control. Any disposition was inconsistent with that control, and therefore void.
45. With effect from 1 October 2007, Pt VII of the Mental Health Act 1983 was repealed and replaced by the provisions of the Mental Capacity Act 2005. This established a new Court of Protection with more comprehensive powers (along with a new statutory office of Public Guardian). The 2005 Act provides that the Court may by order make decisions on behalf of the person incapable or may appoint a “deputy” to make decisions on his or her behalf. The deputy will have such powers as the court determines. The role of the deputy is therefore similar to that formerly of a receiver under the Mental Health Act.
46. There appears to be no direct authority on the effect of the appointment of a deputy on the patient’s ability to dispose of or deal with property: in this case, his rights against the defendant in respect of the judgment debt. However, in my judgment, the principle established under the previous legislative framework applies to mentally incapable persons within the jurisdiction of the new Court of Protection. In this case, the order of 19 August 2011 conferred general authority on Ms Giles to take possession or control of the property and affairs of the claimant; and any purported disposition or dealing with that property would be void.
47. It follows that even if the claimant had regained capacity during the relevant period, he could not, as a matter of law, enter into a binding agreement with the defendant.
Master Clark, in the alternative, decided that on the evidence before the claimant did not, in fact, have the capacity to enter into the agreement in question.
It is unfortunate, and perhaps reflecting the fact that Master Clark was not given assistance by the parties, that her conclusions in relation to the effect of deputyship were reached without consideration of s.20(1) MCA 2005, which provides that “[a] deputy does not have the power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to a matter.” This provision, which had no equivalent in Part 7 Mental Health Act 1983, means that the framework in relation to deputyship is no longer the legal incapacitation which occurred upon the appointment of a receiver, but is intended to be calibrated to the current ability of P to make the decision(s) in question. It is reflected in the standard wording of the deputyship order, which provides that the deputy is appointed “to make decisions on behalf of X that he/she is unable to make for him/herself in relation to his/her/property and affairs.” Re Walker and Re Marshall are therefore no longer good law.
Because of the way in which she approached matters in the alternative, Master Clark’s ultimate decision does not appear on its face impugnable, but it should be emphasised that the claimant’s legal incapacity to enter into the decision did not flow from the fact that he was subject to deputyship, but rather from his mental incapacity in relation to the specific decision.
Deputyship can undoubtedly serve as a tool for legal incapacitation if not properly utilised, in particular if the deputy does not (as they are bound to both by statute and the orders appointing them) abide by the principle in s.1(3) MCA 2005 that a person is not to be taken as unable to make a decision unless all practicable steps have been taken to support them. But the decision in Bashir does not stand as authority to suggest that the compatibility gap between the MCA and the CRPD (and/or the CRPD as interpreted by the Committee) is anywhere near as great as paragraphs 46-7 would make it appear.