The Deputy, The Spliff and the Law Courts

E is a 27-year-old male who suffered a brain injury and whose claim settled in March 2021. The settlement consisted of a lump sum and a PPO. A Delegate was appointed for his property and financial affairs but there is no welfare Delegate as E was assessed as having capacity to make health and welfare decisions with the assistance of his case manager. Where he lacked capacity, decisions are made on a best interest basis by his MDT.

E lives in a flat and in 2025 his support was increased to 24/7. The increase was a result of his support team becoming aware that E was using cannabis and had begun exhibiting concerning behavioural changes. The consultant neuropsychiatrist, Dr Martine Stoffells, diagnosed him with cannabis-induced psychosis. At this point the Delegate became concerned about the funds being provided to E and discussed it with the MDT. A view was taken that, while there were serious concerns regarding cannabis use, the negative effect of depriving E of funds outweighed the potential benefits of restricting his ability to obtain cannabis. In March 2025 E’s flat was raided by the police but, following further investigation, no action was taken against E as the police were of the view that drugs were being dealt in the stairwell by two individuals who befriended him. E’s support was therefore increased and the Delegate suspended payments to E until his health and lifestyle improved, at which point it was reinstated at £50 per week in April 2025.

The Delegate made an application to Court requesting authority to continue to pay E his allowance despite the fact it may be spent on alcohol, cannabis or other illegal drugs because depriving E could lead to deterioration in his condition due to the loss of the small amount of independence it affords him. In addition, it could cause him to take detrimental steps such as getting into debt to procure cannabis. In reports for the County by Dr Stoffels and the case manager both felt the risk of stopping the small amount of independence was more detrimental to E.

Prior to the application the Delegate considered many issues including they may be committing a criminal offence by giving E funds knowing he may spend it on cannabis. Advice was sought from English leading Counsel, Gideon Cammerman KC, as there were no obvious precedents in Jersey. Counsel did not believe an offence was being committed as the Delegate was not condoning the drug use. It was also considered whether the Delegate was potentially liable for a criminal offence in connection with money laundering but this would not gain traction in E’s case as the funds that were given to E were not proceeds of crime and he was not being encouraged to use the funds for criminal acts.

The Delegate also sought advice from leading counsel, Victoria Butler-Cole, who specialises in health and social care as to how the Court of Protection was likely to approach this. Ms Butler-Cole advised the use of drugs and alcohol must be weighed against E disengaging completely and that a more restrictive package would be counter-productive.

The approach of the Official Solicitor was considered, which was that it is not appropriate to assess Ps capacity to do something that is a criminal offence. There can be no best interests decision on an illegal act so there should be no capacity assessment as it serves no purpose. Assessing capacity to consume cannabis could be viewed that one possible outcome is that it is in the individual’s best interest to consume cannabis. The decision based on case law is that a better analysis is that care plans where individuals are at risk of committing an offence may be endorsed by the Court if the overall care arrangements are deemed to be in the individuals best interest. Counsel agreed with this approach. Although cannabis use is a welfare issue, counsel pointed out that it is also an issue in respect of property and financial affairs, since E can only purchase cannabis if the Delegate provides him with funds.

In making the decision the Court had to consider Article 3 of the Capacity and Self-Determination Jersey Law 2016, which is similarly set out to the Mental Capacity Act 2005. In the 2016 Act it states a person is not treated as unable to make a decision unless all practicable steps to enable that person to make a decision have been taken without success and any decisions must be made in P’s best interest.

The Delegate’s affidavit to the Court considered a variety of matters for and against the decision to pay E weekly funds but, after consideration with the MDT, the Delegate believed it was in E’s best interest to continue paying his weekly allowance. They genuinely believed that not paying E would cause him more harm both in terms of his own wishes and feelings and also in terms of the risk to him of what he will do instead. Dr Stoffels was also in agreement.

The Court acknowledged that the Delegate was faced with a difficult decision but were impressed with the lengths she went to in identifying the issues and obtaining appropriate advice. Having applied the test from In re S Settlement [2001] JLR Note 37, the Court approved the decision of the Delegate to advance funds to E in the form of a £50 allowance per week as it was in his best interest to do so; however, for the avoidance of doubt to Court pointed out their decision is not to be regarded as them determining that it is in E’s best interest to commit a criminal offence or declaring illegal conduct is lawful.

The role of a financial Deputy, on the face of it, is to make decisions in relation to P’s property and financial affairs. However, it often goes much further than that. The Deputy must work collaboratively with the MDT on a variety of matters to include the impact on P when there is use of illegal substances, alcohol abuse, excessive pornography use and unhealthy relationships to name a few. The Deputy, as set out in the matter of E, cannot ever authorise or justify an illegal act but must always have regard to P’s best interest and consider the wider impact of a decision on them.

As is evident from the matter of E, although our laws vary, the best interest of P is always a crucial consideration.