In the personal injury case of EXB v FDZ & Ors  EHWC 3456 (QB), Foskett J had to grapple with a question that has apparently never been considered (or, more likely, never been the subject of a reported case). Should the deputy appointed to manage the substantial personal injury payment made to the brain-injured claimant be permitted not to tell the claimant the precise sum awarded him?
The matter arose in the personal injury proceedings because the claimant’s mother (his litigation friend) and his solicitor considered that it was in his best interests for him not to be told the settlement sum. Rightly, they, and the court, recognised that this represented a substantial interference with his rights, and Foskett J adjourned, including for pro bono assistance from Tor Butler-Cole as amicus curiae.
The evidence reviewed in detail by the judge included the following from his treating neuropsychologist (who did not know the settlement sum):
The first issue, to my mind, would be his vulnerability. If he were to have knowledge of a specified sum he would have a significantly compromised and basic appreciation of its intended purpose. Such knowledge would translate and impact upon his behaviour. In plain terms I know that if EXB knows that he has a specific sum of money he (a) perseverates over it and cannot move beyond thinking about what he’s going to spend it on, and (b) he will seek to spend money that he has in his head – even if he doesn’t physically have it. It would, in my view, escalate his existing vulnerabilities to himself and his own actions. It would also escalate his vulnerability to others.
In my clinical opinion knowledge of a crystallised figure from his perspective would cause him to be more vulnerable to his own impulses, and increase his vulnerability to other people who might, for example, propose to borrow money from him …
He, in my experience, constantly lives beyond his means. This situation is not mediated by the amount he receives. It results in him borrowing money, and him being in a seemingly unbreakable cycle of what he refers to as “owing money out”. There is a culture within EXB’s peer group of lending money to one another and helping each other out financially. Clearly there is nothing wrong with this per se, but there is clearly a risk of exploitation if there is a perceived imbalance within that group of their respective means.
In my opinion EXB is likely to conceptualise a crystallised figure as a pot of gold or lottery win. Upon the assumption that it is a substantial sum, it is likely to distort his perception of his own means, and exacerbate his preoccupation over money. It is likely to encourage “Well it’s my money – I’ve got this amount – Why can’t I have £x for whatever?”. In my view it is likely to exacerbate EXB’s existing difficulty with money and his finances, and consequently also significantly exacerbate his frustration. It would further limit his insight into situations that he already finds himself in, such as misallocating and spending money on items that he had not planned. The coherent sense that his support team are trying to employ with EXB by, for example saying if you ask for £100 for x, you need to spend it on x, would largely become missing on EXB as he would simply be preoccupied by the conceptualised pot of gold. EXB does not have an overall coherent sense and appreciation of his finances, his preoccupation with money, his behaviour, and how all of these are linked together. In my view it is therefore important to appreciate that a specified figure is not just likely to affect his actions and decision making, but also his frustration and behaviour to the detriment of himself and those around him.
Interestingly, but not entirely surprisingly given that many with brain injuries are frequently able to grasp at least part of their deficits, EXB himself seems to have had some appreciation of his position and expressed views both to his own solicitor and to the court that it was better that he did not know the sum, although (after having said this to the court) apparently expressed the view that he had been conned into doing so.
In approaching the question of what was in EXB’s best interests, Foskett J noted the difficulty posed by the fact that, logically, this could only be asked having assessed EXB’s own capacity in this domain – when this would be entirely to defeat the exercise. He found he was able to conclude, however, that he lacked the relevant decision-making capacity. He further found that it was in EXB’s best interests not to be told the sum, relying in part upon the fact that:
the conclusion to be drawn from all the evidence is that when the Claimant is capable of sitting down and weighing up the competing considerations calmly, possibly with the assistance of others, he considers that it would be in his best interests not to know the amount of the award.
Foskett J left for another day the question of whether a decision not to tell a person in the Claimant’s position a sum that they had been awarded lay within the scope of the normal deputyship order made by the Court of Protection. He was, in this, particularly persuaded by the fact that it would make the deputy’s life much more difficult if it perceived to be the deputy’s decision not to tell the person; conversely, it would be significantly easier for the deputy if they could tell the person that the court prevented them from doing so.
Foskett J endorsed an order which is likely to be assistance in any future case in which this issue arises, and held that the costs of the exercise that he had undertaken had to be borne by the relevant defendants, as the need to make the application arose directly out of their actions.
Finally, Foskett J noted that:
53. If it is the case that it is an issue that might arise for consideration more frequently than hitherto, I think there is at least the makings of a case that the inter-relation of the normal rules of civil practice and the rules of the CoP is considered with a view to trying to streamline a way of dealing with the issue, if it arises, in a convenient and fair way. As I have already said, I have been greatly assisted by both Counsel in this case and, in particular, by Ms Butler-Cole who kindly agreed to act on a pro bono basis. However, that cannot be expected in every case, but it is possible that the issue (or some other welfare issue) will arise at the time when the case is still proceeding in the High Court. Whilst some QB Judges will have experience of the CoP jurisdiction, many will not. (There is also the question of what happens where an action in the County Court raises a similar question.)
54. All I can do is to flag up the issue and invite the appropriate bodies to consider it. I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result.
Foskett J was undoubtedly right to conclude that the principles both of the MCA and of the CRPD suggest that, ordinarily, a person in the Claimant’s position should be informed of the details of a settlement award because this would be to treat him in the same way as a person without a disability. In some ways, this was a relatively easy case for him to determine, because there was at least some evidence upon which he could rely in order to conclude that the person did not wish to be told the settlement sum (in CRPD language, to withhold it from them was to respect their rights, will and preferences). It would have been significantly more difficult for him to have taken the course that he did if EXB had been demanding consistently to know the sum; now that this issue is squarely on the radar of practitioners, it will no doubt only be a matter of time before such a case does arise.