Why is it such a big issue and what has the Court said?
The question of whether a person who lacks capacity should know how much their damages award is has been rumbling on for a few years now.
The Courts have been realising that sometimes a person would be better off not knowing how much compensation they have received. Some people will be very sensible with the information and keep it private. Some people aren't able to do that and can cause problems for themselves. What about John who goes into the local pub and says quite loudly he's a millionaire and by total coincidence seems to attract a lot of unsuitable women who latch on to him and then leave him once they realise there is a Deputy in the way of their access to cash. What about Jenny, not given to broadcasting the amount of her award in the pub but worried that when she comes under pressure from her less than well-meaning sister to say how much she has, she won't be able to resist that pressure.
Sometimes the litigation Court will be so concerned about what would happen if the client knew the size of their award that they will make an Order as part of the claim that they shouldn't be told.
In this case the Court looked at two clients, both looked after by the same trust corporation Deputy. The Court had decided that when assessing a person (P's) capacity to make the decision about whether they should be told the amount of their award or not, the Court needed to look at:
- The nature of the information in question,
- The risk of obtaining it,
- The risks of not obtaining it,
- The benefits of obtaining it,
- The benefits of not obtaining it.
The Court said that "when assessing P's capacity to take the decision, her ability or the extent of her ability, to recognise, retain and weigh the above questions and specifically to recognise, retain and weigh her own vulnerability and it's potential consequences, will frame the scope of the decision. The Court went on to say that if the client is able to recognise these problems and vulnerabilities, retain the information and weigh it up then she is likely to have capacity to make this decision. She is still vulnerable and may make unwise decisions in the future and be exploited but the Court's job is not to wrap her life in cotton wool. The Court said "a life wrapped in cotton wool is a restricted and diminished one". The Court then applied that to the two cases.
CK does not recognise her own vulnerability. She is sometimes careless about what she posts on social media about money and she lacks insight into the need to protect herself from financial abuse. She has though worked out for herself pretty accurately how much the damages are. The Court found that CK can't make the decision for herself whether to know the amount of her damages. The main reason for that is because she doesn't recognise her own vulnerability. However, because she has already worked out what her damages probably are, the Court didn't feel that knowing the precise amount would make her much more vulnerable.
NJ on the other hand does not understand figures or the relative value of money and doesn't recognise the full extent of her disability. She has actually said she doesn't want her brother to find out about the value of the award but can't express why when asked. She wants to have land to keep horses and space for her dogs and to have support and be settled. The Court felt that she was very vulnerable to exploitation and noted that her brother was described as being addicted to heroin. She doesn't understand her own vulnerability but even if she was told the amount of the award, she wouldn't understand the size and value of it. The Court decided that she lacked capacity to make this decision and also should not be told of the amount of her award.
Very helpfully for Deputies, the Court said that an application to Court to decide this issue was not necessary in every case. The Court said that sometimes the decision would "be clear, perhaps even just common sense". In some cases though because the issue is difficult, an application will need to be made to the Court.
Comment
This is a very helpful decision for Deputies. It sets out what we need to consider when making a best interests decision about whether somebody should be told the size of their award.
It is vital to remember that if P has the ability to make that decision then whether the Deputy thinks they should be told the size of the award or not, they can decide whether to know for themselves. The Deputy should check with them whether they want to know of course as some people will have weighed up their own vulnerability and decide they would rather not.
This also gives comfort to Deputies who have clients who do not know the size of their award for very good and non-contentious reasons. Some clients just aren't able to take in the information and others would perhaps seize on a global figure but without the understanding of what that award needs to do for the rest of their lives.
There was a suggestion that whether a person should know the size of their award was a welfare decision and not something a financial Deputy should take to Court but the Court made it clear that it was in fact a financial decision.
So the steps are, work out whether you client has capacity to make the decision for themselves. If they do, ask them whether they want to be told, if they don't then make a best interests decision whether they should be told but if this is complicated or contentious then take it to the Court of Protection.
https://www.bailii.org/ew/cases/EWCOP/2024/14.html
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