Controversial deputies

In The Friendly Trust’s Bulk Application [2016] EWCOP 40, the trust was seeking a bulk order in respect of 52 deputyships inter alia to be entitled to charge fixed costs up to the amount permitted under practice direction 19B to the Court of Protection Rules 2007. This was, it said, so that it could continue to provide a deputyship service on viable terms.

The permission requested was both retrospective and prospective and asked for liberty to apply for costs in future cases as well. The reason for the application was that the Office of the Public Guardian had established that the Friendly Trust had been without authority to charge for anything other than out-of-pocket expenses.District Judge Eldergill considered that a ‘bulk’ application was not appropriate because the interests of those lacking capacity were materially affected by the order sought and it was necessary for them to be notified, unless notification was dispensed with under the 2007 rules. He considered that the Friendly Trust provided a valuable public service but it did not provide a higher quality of service than a public authority and the quality of work provided was not equivalent to that of a solicitor deputy.

He noted that the Ministry of Justice was in the process of revising the fixed costs practice direction, which is sorely needed as the rates for local authorities and solicitors have become unreasonably low. He also gave guidance as to how the court should consider applications for fixed costs, all of which should be examined individually. The court did believe that it must consider each case put before it by the Friendly Trust separately.

In Watt v ABC [2016] EWCOP 2532, Mr Justice Charles considered whether the appointment of a permanent deputy was in ABC’s best interests or whether a personal injury trust ought rather to be authorised on ABC’s behalf instead. In particular, Charles J was critical of the analysis of Judge Hazel Marshall QC in HM v SM [2011] EWHC B30 (COP), in which she indicated that there ought to be a presumption in favour of utilising the bespoke deputyship scheme established by parliament to cater for the management of the affairs of those who lacked capacity to deal with such affairs themselves.

Charles J had considered whether ABC should be protected from himself should he ever reattain capacity to deal with his assets. However, in the circumstances, the judge held that ABC should retain the interim deputy appointed for him on a permanent basis.

Charles J was keen to ensure that a personal injury trust should be considered on a case-by-case basis without a presumption in favour of deputyship.

It is to be recalled that there are significant benefits from the deputyship structure in terms of costs protection for the person who lacks capacity and also the benefit of having the security bond in place. These should not be underestimated, and the costs of these benefits should fall at the door of a tortfeasor if that tortfeasor’s wrong has caused the lack of capacity.

It must be remembered that where someone regains capacity, they are entitled to the freedom to make their own mistakes. This may have radical consequences, which may be difficult if someone has borderline capacity, as in the ‘sparkle’ case of King’s College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, where a person who had a personality disorder had capacity to refuse medical treatment with a result that she died. She felt that her condition had taken away the sparkle from her life and therefore that her life was not worth living.

Thus, while it might hypothetically be in a person’s best interests to be protected from the unwise decisions of a future self who had regained capacity, this runs squarely contrary to the premises of the Mental Capacity Act 2005, which is to empower people with capacity (as defined by the Act) to make their own mistakes, not to impose paternalism on them.

Ruth Hughes is a barrister at 5 Stone Buildings

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