In a recent Judgment handed down by Sir Andrew McFarlane, President of the Family Division, the Court of Protection considered an urgent application brought by Deputies acting for P, who sought a payment of £17,000 from his funds to repay a drug debt to an organised crime group.
Case Summary
The Protected Party (P), now in his 20s, suffered a severe brain injury as a toddler in a road traffic accident and was awarded a substantial compensation fund. Despite cognitive impairments, P lives independently and is not subject to any welfare Orders. He has been deemed to have capacity in some matters, including entering a cohabitation agreement (assessed in 2020). However, his property and affairs remain under Deputyship.
Over a year ago, properties associated with P were raided by police. A significant quantity of Class A and B drugs was seized and P was arrested. His Deputies were aware of the arrest but believed the matter was limited to potential criminal proceedings. The situation escalated when P informed his Deputies that he owed £17,000 to a drug gang. He had reportedly agreed to share in the profits of the drugs seized. Fearing for his safety, P requested a payment from his fund to settle the debt.
The Deputies found themselves in a near-impossible position:
- If P had capacity, they would be obliged to comply with his request, provided the payment fell within his legal entitlements.
- If P lacked capacity, they could refuse the request, but the matter would then fall to the Court to consider whether it was in his best interests.
- Either way, making such a payment risked criminal and professional consequences.
The Deputies obtained Counsel’s advice, which confirmed that making the payment would likely breach the Proceeds of Crime Act 2002, particularly under section 328 (entering into or becoming concerned in arrangements facilitating acquisition, retention or control of criminal property). Even if done with the best of intentions, such a payment would be seen as enabling criminal conduct and could expose the Deputies to liability. The advice obtained from Gregory Treverton-Jones KC confirmed that the Deputies would be in breach of the Solicitors Regulation Authority’s Principles and Code of Conduct if they made the payment.
The Court commissioned an updated, decision-specific capacity assessment which was carried out by Dr Geoff Hill, a consultant clinical neuropsychologist. The key findings included:
- P understood the nature of the decision but he could not weigh the long-term risks or recall and apply key information (e.g. risk of prosecution, long-term financial harm)
- His decision-making was driven by immediate emotional relief (reducing stress), not reasoned evaluation.
Dr Hill concluded that P lacked capacity to make this particular decision despite functioning well in other areas of life.
Ruling
Sir Andrew McFarlane concluded that:
- P lacks the mental capacity to decide whether to pay the £17,000 drug debt.
- The Court cannot authorise a criminal act, even if it may reduce stress or mitigate a personal risk to P.
- The Deputies acted appropriately in seeking Court guidance and the Court expressly refused to dismiss the application, instead issuing a formal refusal to sanction the payment.
Importantly, the Court refused to make a best interests decision because of the binding authority in Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, confirming that the Court of Protection cannot authorise illegal conduct under any circumstances.
Summary
The Court refused to sanction the payment requested for the payment to be made to the drug gang, concluding that doing so would amount to facilitating criminal conduct. This Judgment offers important clarity on the limits of Deputies’ powers and reinforces the fundamental legal principle that the Courts cannot condone or enable criminality, even where the individual involved believes it is in their best interests.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.