Drugs, Debts and Deputyship: unique challenge in recent Court of Protection case

Background

P, a man in his twenties, suffered a severe brain injury in childhood resulting in a substantial personal injury settlement. He was assessed as lacking capacity to manage his settlement and two professional deputies were appointed to oversee his property and financial affairs. P lives independently and retains capacity for most every day and all health and welfare decisions.

Unfortunately, P became entangled with a criminal gang and a police raid on his home led to the seizure of Class A and B drugs. The gang held P responsible for part of the loss and demanded he pay £17,000, threatening him and his family with violence. In response, P asked his deputies to transfer funds to settle the debt.

The deputies, caught between P’s wishes and the legal risks of facilitating what could be a criminal transaction under the Proceeds of Crime Act 2002 (POCA), sought urgent guidance from the Court of Protection. Specifically, they requested:

• A declaration on whether P had capacity to decide on repaying the debt
• A decision in the event he lacked capacity
• Guidance on how to safeguard P from further harm

To address the matter, the Court first had to determine whether P had the capacity to decide on paying his drug debt. While it might be assumed that funds should not be released to P on the grounds that doing so could result in his reckless engagement in criminal activity, it is essential to recognise that a person cannot be deemed to lack capacity simply because they make an unwise decision (Mental Capacity Act, Section 1(4)). Therefore, if P possessed capacity, his deputies would be legally required to release the funds.

With this in mind, a capacity assessment was conducted. Capacity is decision-specific, a person may lack capacity in some areas while retaining it in others. Although P had previously been found to lack capacity in relation to his settlement, he demonstrated capacity in other matters, such as entering into a cohabitation agreement.

Despite this, an expert neuropsychologist concluded that while P had capacity in certain aspects of his life, he lacked capacity regarding this particular decision. Despite being articulate and aware of his situation, P’s executive dysfunction impaired his ability to adequately weigh the risks and long-term consequences of paying or not paying the gang. The Court accepted this expert opinion and ruled that P lacked capacity in relation to this specific choice.

Importantly, the Court also noted that if P had been found to have capacity, the deputies would not have committed an offence by releasing the funds. Acting on a lawful instruction from a person with capacity would have protected them from liability under POCA, as the funds would have been transferred under a legal obligation and without criminal intent.

However, since P lacked capacity, although the money held by the deputies was not initially criminal property, it could become so if the deputies chose to use it to repay a drug dealer on P’s behalf. Solicitors are advised not to assist in criminal conduct, and facilitating such a payment could constitute a breach of the SRA Code of Conduct.

Outcome

The President of the Court of Protection ruled that:

• P lacked capacity to decide on the repayment
• The Court cannot authorise illegal acts
• The deputies were right to seek court guidance given the complexity and risk

The Court acknowledged the serious risk of criminal liability and professional repercussions faced by the deputies and affirmed that deputies are entitled to judicial protection in situations of such legal and ethical sensitivity.

Implications of the Judgment

This ruling provides important guidance for deputies and professionals working in mental capacity law:

1. Deputies cannot be compelled, nor should they agree, to facilitate unlawful conduct, and the Court cannot authorise illegal acts.
2. If the individual has capacity, deputies must comply with their instructions, even if risky, as they have no legal grounds to withhold funds
3. The case underscores the delicate balance between respecting autonomy, ensuring protection, and complying with the law
4. The decision may significantly shape future professional practices due to its real-world implications and legal complexity

Conclusion

The judgment in EG v P stands as a critical precedent for how deputies should respond when faced with requests that may carry criminal or ethical consequences. While personal autonomy remains a cornerstone of capacity law, deputies are not expected to navigate such high-risk scenarios without legal clarity or support. This case underscores the importance of judicial oversight in complex and unprecedented situations and may prompt further professional guidance going forward.

Read more about the Court of Protection and Deputyship here.