This is a first post from Abigail Bond, one of our new contributors. Abigail tweets as @AbigailBond1.
In May this year Mr Justice Francis handed down a carefully anonymised judgment in a case concerning PBM, a man in his mid-twenties who had an acquired brain injury as a result of a deliberate injection of insulin by his father when he was 12 months old. The Judge was sitting in the Court of Protection, a court which makes decisions about and on behalf of adults who lack mental capacity to make decisions themselves.
In this case, the Court was asked to decide whether or not PBM had the capacity to marry his fiancé, make a will, enter into a prenuptial agreement and whether he should be informed about the extent of his assets. His assets were managed by his Deputy for Property and Affairs and included the significant award he had received from the Criminal Injuries Compensation Board in respect of what had happened to him.
One of the first things that a Judge in a Court of Protection case needs to consider is whether or not ‘P’ has the mental capacity to make the particular decision themselves. In this case, after hearing the oral evidence given by Dr Layton, a jointly instructed consultant psychiatrist specialising in learning disability, who had assessed PBM, all parties agreed that PBM did have the capacity to marry, to make a will and to enter into a prenuptial agreement. The aol headline ‘Judge gives mentally disabled man the go ahead to marry’ is therefore a little misleading, because the bulk of the judgment deals with the only remaining contentious issue, which was the question of whether PBM should be told about how much he was worth. That said, it is hardly surprising that the human interest elements of marriage, money and mental capacity led to a limited and narrowly focused media report rather than a balanced overview of what the case was actually about. The link to the Bailii judgment, omitted from the aol article, is available here.
In considering that issue the Judge said that although it was ‘desirable’ for PBM to have that information about the value of his estate, he did not accept that a valid prenuptial agreement cannot be made without knowledge of the value of one’s assets. He concluded from the evidence of Dr Layton that PBM did have the capacity to decide whether to ask about or to be told about the extent of his assets, and that if he was wrong in reaching that conclusion it was in PBM’s best interests to be provided with that information. Whilst PBM’s Deputy had concerns about PBM’s welfare in the event that he was armed with knowledge of his assets, his potential vulnerability in being provided with that information was not enough to justify withholding it. The Judge went on to say that the existence of the Deputyship itself had been an effective safeguard against financial abuse, and that since PBM had very clearly expressed his wish to enter into a prenuptial agreement and to make a will, his ability to effect both of these would be greatly enhanced by knowing about his assets. He recommended that PBM was supported emotionally when informed about the extent of his assets.
Interestingly, whilst Court of Protection hearings are ordinarily held in public (subject to restrictions about what information about the proceedings can be reported) this hearing was heard in private. The Judge justified this on the basis that ‘the very personal and sensitive nature of the material being considered at the hearing made it ‘inappropriate’ to conduct the hearing in open court’; and that to do so would have been likely to cause emotional harm to PBM. In some ways that is a surprising rationale since it is difficult to envisage any Court of Protection case where the material is neither personal nor sensitive. It is likely, however, that the decision was linked to PBM having expressed considerable concern about allowing members of the public to be present.
Image – Heart and Ring Camdiluv on Flickr (creative commons – thanks)