The court ordered the deputy to provide an account. When he failed to do so, the court discharged him and invited a panel deputy to be appointed.
The deputy applied for that order to be reconsidered.
The Patient (“P”) is a 64 year old women and MP is her long term business, and personal, partner.
In 2002 P suffered a heart attack and due to delayed resuscitation she suffered brain damage. P sued for negligence and obtained damages of £300,000.
On 13th August 2010 MP was appointed P’s deputy for property and affairs and the court required him to maintain security of £150,000.
The OPGs concerns were that:
- even though they allowed MP to file accounts to coincide with his and P’s business year end, rather than annually from the date of appointment, MP was in arrears by three years;
- there were unpaid OPG’s supervision fees of £888;
- MP insisted that the court order only related to P’s damages and no other finances, which were mostly in their joint names;
- MP would not let the Court of Protection General Visitor see P;
- MP had sent the OPG an invoice for costs he incurred which he expected the OPG to pay.
MP felt that the OPG’s demands and investigations were disproportionate; he described them as ‘overkill’. MP supplied a letter from his accountant regarding the business and how they were run to a good standard and backed up by invoices and bank statements where necessary, with very little personal expenditure.
MP had not touched P’s damages as he was hoping for a breakthrough in neuroscience. Then the damages could be used for private treatment to fund stem cell therapy. Further MP had kept P’s money in the Court Funds Office rather than risk putting it in banks since the financial global crisis.
MP was ploughing money back into the joint business so if he died before P there would be funds to provide her future care.
The court reiterated the duties imposed upon a deputy and what the court can request from deputies, such as submitting reports to the OPG (sections 19(9) and s16(3)of the Mental Capacity Act (‘the Act’).
The court can revoke the appointment of a deputy if the deputy behaves, or proposes to behave, in a way that contravenes their authority, or is not in P’s best interests. The court clarified that the two grounds (contravening their authority, and not in P’s best interests) are mutually exclusive and that a deputy can act in P’s best interests but may still act in contravention of their authority. The court concluded that the word ‘authority’ was not limited to meaning the power or right to make decisions but extended to include the duties and responsibilities of the deputy.
The court found that MP failed to comply with his duties as a deputy and confirmed the previous order revoking MP’s appointment as deputy and inviting a panel deputy to apply for appointment in his place.
Although the court was certain that there was no ‘dishonest misappropriation’ of P’s funds, it referred to the undertaking that MP gave to comply with any directions of the court or reasonable requests from the OPG, and to allow a representative of the OPG to meet P. MP had wilfully refused to comply with his duties.
This case demonstrates that the court will not undermine the safeguarding work carried out by the OPG even where a deputy has acted in P’s best interest.
This case reiterates the obligations under international human rights laws as well as domestic law.
Read the full text of the judgment on Bailii