In the matter of E (Capacity) [2026]JRC002

In the matter of E (Capacity) the Royal Court of Jersey considered an application by a financial delegate appointed under the Capacity and Self-Determination (Jersey) Law 2016 to bless her decision to continue to exercise her discretion to pay pocket money to the patient notwithstanding the risk that funds advanced may be spent on illegal cannabis (or other illegal substances). In its judgment the Court considered expert evidence on English law and accepted that the case could be distinguished from EG & Anor v P [2024] EWCOP 80 (T3).

 Charles Sorensen appeared for the successful applicant, instructed by Zoe Blomfield and Ashley Bidmead of Viberts

the commissioner:

1.        On 18 November 2025, the Court sat to hear an application by Advocate Zoe Blomfield (“the Delegate”) as Delegate of (“E”).

2.        No Delegate is appointed for E’s health and welfare matters. E has been regarded as having capacity to take some health and welfare decisions with the assistance of his Case Manager, Verity Boak.  Where he does not have capacity, decisions are made in his best interests by those treating and caring for him. Meetings are held by a Multi-Disciplinary Team (‘MDT”) to make those decisions.

3.        The Delegate’s application sought the Court’s blessing of her decision to continue to pay pocket money to E should she deem it appropriate to do so. Described in that way the application would appear to be straightforward. However, the circumstances of the application are highly unusual, in that there is a distinct likelihood that E will use the pocket money given to him to purchase cannabis for his personal consumption, which is both illegal and adverse to E’s health.

4.        At the conclusion of the hearing, we granted the order sought and the following are the reasons for our decision.

5.        E is 27 years old. [Redacted].

6.        In March 2021, a personal injuries claim in respect of E’s injuries was settled for a lump sum plus annual periodical payments.

7.        E currently resides in a flat in (“Parish A”) which was purchased for him by his Delegate. He receives one to one care from support workers. Until the occurrence of certain events last year, E received approximately 35 hours of support per week. However, he now receives 24/7 care.

8.        In recent years, E’s care workers became aware that he was using cannabis. He began exhibiting concerning behavioural changes including experiencing auditory hallucinations. In 2024, he was diagnosed by Dr Martine Stoffels, a consultant psychiatrist specialising in neuropsychiatry, as suffering cannabis-induced psychosis.

9.        At the same time, E’s flat was being frequented by a group, largely made up of acquaintances of his brother, who took advantage of it for their own social gatherings. This caused the condition of the property to deteriorate significantly.

10.     Upon being advised of E’s drug use, the Delegate became concerned about the use to which funds provided to E were being put. She discussed the issue with the MDT responsible for his care and the view was taken that, whilst there were serious concerns about E’s cannabis use, the negative effect of depriving E of funds outweighed the potential benefits of restricting his capacity to obtain cannabis.

11.     In March 2025, E’s flat was raided by the States of Jersey Police (“SOJP”). The SOJP had received intelligence that the property was being used by individuals to deal drugs. Cannabis belonging to E was found, along with a small amount of Tetrahydrocannabinol (“THC”). THC is a class A drug. E denied knowledge of the THC.

12.     The SOJP did not proceed with an interview or take matters further with E. The Delegate understood that the view of the SOJP was that drugs were being dealt from the stairwell of E’s flat by two individuals who had befriended him.

13.     As a result of these events, a 24/7 care plan was put in place for E. The Delegate also took the decision to suspend payment of funds to E. Following some improvements in E’s health and lifestyle, the Delegate reinstated his pocket money at £50 per week in April 2025. It remains at that level. In November 2024 the Delegate brought a Representation which was, in material part, adjourned and in June 2025, the Delegate took steps to bring her application back before the Court. A hearing was subsequently listed for 18 November 2025.

The Delegate’s dilemma

14.     The Delegate is, understandably, concerned that funds advanced to E may be spent on cannabis, alcohol, or, potentially, other illegal drugs. The Delegate is similarly concerned that depriving E of funds could lead to a deterioration in his condition due to the loss of the small amount of independence it affords him and/or cause him to take detrimental steps, such as getting into debt, in order to procure cannabis and maintain his social life.

15.     The issue was usefully summarised by Dr Stoffels in her report for the Court, dated 31 October 2025, in which she stated:

“Professionals are therefore faced with a profound ethical dilemma. On one hand, continued access to substances directly contributes to physical and psychological harm, psychotic relapse, and financial exploitation. On the other hand, strict prohibition or withdrawal of all funds has historically precipitated aggression, non- engagement, escalation of risk-taking behaviours, and covert substance seeking through unsafe channels.

From a clinical and safeguarding standpoint, the MDT and financial deputy are therefore required to balance two competing imperatives:

i)            Protection from harm – minimising the risks of intoxication, psychosis, and exploitation; and

ii)           reduction of immediate crisis behaviours – preventing escalation, aggression, or absconding when access is restricted too abruptly.

The current approach, maintaining a limited weekly allowance (£50) under close deputy and staff supervision, does not imply endorsement of substance use but is instead a harm-reduction measure. It allows a degree of autonomy while containing the scale of potential damage and preserving engagement with care. This is a pragmatic, ethically proportionate response in an individual who lacks capacity to make safe decisions about drug use and finances, yet whose behavioural volatility and disinhibition make absolute restriction unsafe in practice.”

16.     In an affidavit sworn for this application, Mrs Verity Boak highlighted the impact that stopping payment of E’s pocket money might have on E’s day to day care:

“I do not however think that the answer is to cease payments to [E]. There are clear risks in paying him money, but there are also benefits in him receiving pocket money and risks in withholding funds. As outlined in a joint letter from Dr Stoffels and I to Zoe on 28 November, and as previously discussed, there are significant risks in not paying funds to [E]. Non-payment would deteriorate the relationship [E] has with Zoe and with his support workers. A very serious risk to [E] that Dr Stoffels has highlighted, from her experience in England, is that if he has no funds at all he could easily be lured into dealing as a way of earning funds to purchase cannabis, Providing the amount paid to [E] is kept at a low enough level to reduce the risk of over usage, my view remains that the risk of non-payment is greater than the risks of making payments to him.

I remain of the view that it is in [E’s] best interests to pay him some pocket money and that current amount of £50 per week is in [E’s] best interests balancing the risks to him.”

Criminal law advice

17.     The Delegate was, quite properly, concerned at the risk of committing a criminal offence if she were to continue paying E’s pocket money when there was a risk that he might use it to purchase illegal cannabis. There being no obvious precedent in Jersey, she took advice from English leading counsel, Gideon Cammerman KC.

18.     Mr Cammerman provided two opinions, which were placed before the Court.

19.     The first addressed the potential criminal and regulatory liability of the Delegate. Mr Cammerman concluded that in providing pocket money to E, no criminal offence has been committed by the Delegate and, even if another lawyer disagreed, it was highly unlikely that a prosecution would be in the public interest.

20.     The Delegate relied on Mr Cammerman’s advice in order to assure the Court that, in blessing the decision of the Delegate in the terms sought, it would not be giving its imprimatur to a criminal offence, nor signalling its approval of illegal drug use. Rather, it would be providing its assistance to a responsible Delegate who has had to make, and will continue to have to make, difficult decisions about the provision of funds to E and to balance, with the input of the MDT, the competing considerations to which the relationship between E and money gives rise.

English Court of Protection considerations

21.     In light of the dearth of Jersey authority in relation to the issues faced by the Delegate, she also sought advice from leading counsel specialising in health and social care matters, Victoria Butler-Cole KC, as to how a similar application would be approached by the Court of Protection. Ms Butler-Cole provided an opinion, which was considered by the Court.

22.     Having reviewed English authorities focused on the capacity of a patient to approve their care arrangements, Ms Butler-Cole KC advised that on the basis of those authorities, care plans under which a patient is at risk of committing a criminal offence can be endorsed where, overall, the arrangements are determined to be in the patient’s best interests. She suggested that on that basis the risk of drug and/or alcohol use must be weighed against that of E “disengaging completely with his support team and delegate, and the possibility that a more restrictive care package will be counter-productive in terms of working with [E] to engage in more constructive activities and to reduce his use of illicit substances”.

23.     Ms Butler-Cole referred to a decision of the Court of Protection in MM v A City Council [2021] EWCOP 62 as one of the few examples of a reported decision dealing with the use of illegal substances.

24.     The subject of that case, MM, was also a young man in his mid-20s who misused illicit substances and who was at risk, as is E, of “cuckooing” (a form of criminal exploitation where individuals take over a vulnerable person’s home to use as a base for illegal activities, most commonly drug-dealing).  MM had previously been detained in hospital under the Mental Health Act 1983. He was diagnosed with a mild learning disability and dissocial personality disorder. The Court’s final order declared, pursuant to s.15 of the Mental Capacity Act 2005, that MM lacked capacity to manage his property and finances, and to make decisions to use and consume illicit substances. The care plan that was authorised required MM to live at a particular placement, and to be subject to an evening curfew of 10pm. It appears from the judgment that a standard authorisation under Schedule A1 of the 2005 Act was in place, meaning that the Court considered MM was deprived of his liberty as a result of these requirements. The Court did not impose any more restrictive arrangements which would have reduced or removed MM’s ability to purchase and consume cannabis, despite the risks to him of continuing to do so.

25.     The Court of Protection (HHJ Burrows) noted (at para 11) that:

“the final Order in this case gives Michael a considerable amount of freedom, which he could use in a way that causes harm to himself. Both the Council and those acting for Michael in these proceedings, and DF [his representative under Schedule A1] in particular, have decided that removing risk with increased restrictions would not be in Michael’s best interests. He would feel completely crushed. His life would have little interest. He would become frustrated, angry and resentful. He would become impossible to manage, unless even more restrictive measures were to be introduced … MM will be left with the ability to go out and associate with potentially exploitative people, as well as use drugs and alcohol.”

26.     Ms Butler-Cole pointed out however that the judgment did not address the question of how MM obtained funds to purchase illicit substances, or the legality of him doing so.

27.     Ms Butler-Cole suggested that from her experience in other, unreported cases, the Official Solicitor, who is frequently appointed as a litigation friend for the subject of welfare cases in the Court of Protection, currently appears to take the view that it is not appropriate to assess capacity to do something which is a criminal offence. Although consuming cannabis is not illegal, possessing cannabis is, and one cannot consume it without first possessing it. The Official Solicitor has, it would appear, expressed the view that since there can be no best interests decision about an illegal act, there should be no capacity assessment of a decision to carry out an illegal act, as it serves no purpose.

28.     She noted that in cases where the use of illicit substances arises, the Official Solicitor often addresses the issue under the broader question of whether the individual has capacity to make decisions about their care arrangements. In a case where they were likely to use cannabis, the relevant information to a decision about their care arrangements would include whether they can understand, retain and use or weigh information about the risks of not having 24/7 supervision, including the risk of committing a criminal offence and suffering negative side effects from the use of cannabis. The corresponding best interests decision would then be whether to require 24/7 care for P, rather than whether to use cannabis.

29.     In her opinion, Ms Butler-Cole noted that the risk of assessing capacity to consume cannabis is that it could be taken as suggesting that one possible outcome of the corresponding best interests decision is that it is in the individual’s best interests to consume cannabis. A decision that committing a criminal offence is in his best interests would, she suggested, be surprising. It could potentially fall foul of the decision of the Court of Appeal in Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527. In that case, the Lord Chief Justice said (at para 30) that although the Court of Protection had the power to make declarations about the lawfulness of specific provisions in a care plan, “the use of that power to declare lawful conduct which has the potential to be criminal should be confined to cases where the circumstances are exceptional and the reasons cogent”. Baker LJ said (at para 74) “Where Parliament has expressly decided that certain conduct should be a criminal offence, it is no part of the Court of Protection’s role to declare that it is lawful”.

30.     Ms Butler-Cole went on to point out that the Court of Appeal did not say in terms that a care plan which results in a high risk of the individual committing a criminal offence could not be endorsed by the Court of Protection. If that were the case, then individuals at risk of committing a range of acts such as viewing illegal pornography, purchasing illicit substances, assaulting strangers, and so on, would all have to be subject to very restrictive care plans that reduced the opportunity for offending behaviour to the lowest possible level. The decision in MM for example, would have to be revisited. She suggested that the better analysis is that care plans under which the individual is at risk of committing a criminal offence may be endorsed by the Court, if overall the care arrangements are deemed to be in the individual’s best interests. This does not involve the Court determining that it is in P’s best interests to commit a criminal offence or declaring that illegal conduct is lawful.

31.     We agree with that approach.

32.     Ms Butler-Cole’s opinion further noted that her analysis was from the standpoint of the care arrangements for E, given that his cannabis use is a welfare issue. She pointed out that it is also an issue in respect of property and financial affairs, since E can only purchase cannabis if his delegate provides him with funds. She suggested that the Court of Protection would likely consider both elements together, as there is clearly an inter-relationship between E’s access to cannabis and the level of restriction required in his care package. If he had no money to purchase cannabis, he could potentially be subject to less support, as the risks from cannabis use would be reduced. But the wider issues, including cuckooing, and other risks to E unrelated to cannabis would also need to be factored in. If E had no access to money and could not buy cannabis, the impact on his motivation and engagement may be so severe that the Court might decide the balance is better struck with reduced payments being made to E rather than withholding pocket money completely. In her view, the Court of Protection, if faced with such a situation, would want to carry out a holistic assessment of all these considerations, informed in particular by staff who have worked with E for a long time and who are likely to be in the best position to judge what might work best for him.

Further criminal law advice

33.     As if the issues faced by the Delegate were not already complex, Ms Butler-Cole identified a further issue that needed to be considered. This was the Delegate’s potential liability for a criminal offence in connection with money laundering, should any pocket money be paid to E.

34.     This complication arose in light of a recent judgment of the Family Division of the English High Court in EG & Anor v P [2024] EWCOP 80 (T3) in which the President of the Family Division said (at para 6):

“In relation to criminal matters, and I am reading from the opinion of leading criminal counsel, Jonathan Sandiford KC dated 30 November, he agrees with the previous opinion given by junior counsel that if the deputies, on the basis that P lacks capacity, were to pay the Drug Debt, as it is referred, they would be potentially liable for a number of criminal offences, in particular an offence under section 328 of the Proceeds of Crime Act 2002 and of conspiracy to commit that crime. The opinion goes on to give further details of the different sorts of mechanisms that might be in play were the deputies to make the payment, but the short point is that in relation to each such mechanism, it is likely that the deputies will have become drawn into engaging in payment of what will be seen under the 2002 Act as the proceeds of crime, although obviously, at the moment, the money is not such: it sits in a bank account managed by the deputies on P’s behalf.”

35.     The operative part of s.328 of the Proceeds of Crime Act 2002 provides that:

“A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.”

36.     The equivalent operative part of Art 30 of the Proceeds of Crime (Jersey) Law 1999 is in very similar terms and provides that:

“(3) A person who – (a) enters into or becomes concerned in an arrangement; and (b) knows or suspects that the arrangement facilitates, by any means, the acquisition, use, possession or control of criminal property by or on behalf of another person, is guilty of an offence.”

37.     In the light of this point being raised, the Delegate took further advice from Mr Cammerman.

38.     In his second opinion, Mr Cammerman doubted the analysis suggested in EG v P as to the application of s.328, saying: 

“In my view the summary position put at paragraph 6 of EG is simplistic. The payer of the drugs debt in EG is unlikely to attract choate criminal liability under section 328 POCA. As set out above, the delegate’s funds (or for that matter the funds of the payer in the case of EG) are not criminal property in their hands. Those funds may well become criminal property in the hands of the drugs dealer, and an agreement furnishing him with funds that are later rendered criminal by his possession of them would lead to an offence by him, and therefore potential inchoate liability by their donor. As with the payer of a ransom, English law has long recognised a distinction between (1) doing an act for good reason, knowing that the outcome may be the commission of an offence by another, and (2) attracting liability by either agreeing with that other person to commit an offence or doing something that perhaps you don’t want to but is virtually certain to result in the commission of an offence.”

39.     Further, he distinguished the view expressed on the facts given that in EG the deputy was asking for Court sanction knowingly to pay a drug debt, which is not the position for the Delegate in the case before us.  There is a very significant difference between paying a drug debt incurred by a patient and paying pocket money to a patient having clearly discouraged the purchase of drugs. In the light of this distinction, Mr Cammerman concluded that: “It is difficult to see, in those circumstances how even the most flinty and determined prosecutor could fix criminal liability to the delegate. As fraught as the deputy’s position may be in EG, the same does not apply in our case.”

40.     Mr Cammerman further opined that to bring a prosecution in such circumstances would be perverse and that such a decision would be susceptible to judicial review.

The role of the Court

41.     The Delegate’s application is brought pursuant to Articles 24(5) and 25(1) of the Capacity and Self-Determination (Jersey) Law 2016 (“the Law”).

42.     It is settled law that the Royal Court has the power to bless a decision taken by a delegate.

43.     In Representation of A as Delegate for B [2018] JRC 225, Clyde Smith, Commissioner, applied the test from In re S Settlement [2001] JLR Note 37, namely that the Court should be satisfied that:

(i)        the delegate’s opinion has been formed in good faith;

(ii)       the opinion is one of a reasonable delegate acting in accordance with his or her duties and obligations under the 2016 Capacity Law; and

(iii)      The decision of the delegate has not been vitiated by any actual or potential conflict of interest.

44.     The same approach was taken by Commissioner Clyde-Smith in Zac v Estate of A (Deceased) [2021] JRC 074.

45.     In B v D (Matrimonial) [2023] JRC 029, Sir Willam Bailhache, Commissioner, doubted whether it was appropriate to apply the test from Re S, which is the test used when the Court is called upon to bless a trustee’s decision, because a delegate has a statutory duty to act in the best interests of the patient. Therefore, the Court suggested that it would not be right to adopt a test which could lead to a decision being endorsed simply because a delegate, acting properly and in good faith and without conflict of interest, believed it to be right.

46.     On behalf of the Delegate, Advocate Sorensen submitted that it was not necessary for the Court to resolve the tension between the above authorities in the present case. He submitted that the relevant threshold was satisfied irrespective of whether the decision was viewed through the prism of the Re S test, the best interests of E, or both.

47.     The Re S test is taken from a line of cases in which the Court has been asked to bless decisions taken by a trustee. Unlike a delegate, a trustee is chosen by the settlor rather than the Court and, amongst other duties, has a duty to consider the interests of a beneficial class as a whole. In some instances, the beneficial class may comprise a large number of persons. It is therefore unsurprising that in such cases there may be a range of outcomes of the decision-making process which the court may regard as reasonable. A delegate, on the other hand, is appointed by the Court and is required by statute, as we shall note below, to act in the best interest of the person lacking capacity.

48.     In the context of the present case, we prefer to take the approach suggested in B v D, namely, to consider whether the Delegate’s decision is in the best interests of E, although we accept that in the circumstances our decision would have been the same had we approached the matter applying the Re S test.

49.     The Attorney General was convened to the application in his capacity as Partie Publique. Advocate Kavanagh, on the Attorney’s behalf, helpfully set out the considerations to which the Court should have regard.

Best interests

50.     In making a decision under the Capacity and Self-Determination (Jersey) Law 2016 (“the 2016 Law”), the Court is guided by the core principles set out in Article 3, namely:

“(1) In the application of this Law –

a)    a person must be assumed to have capacity, unless it is shown that the person lacks capacity in the sense given to that expression by Article 4;

b)    a person is not to be treated (under Article 5 or otherwise) as unable to make a decision –

i)            unless all practicable steps to enable that person to make the decision have been taken without success, nor

ii)          merely because the person makes an unwise decision; and

(c)       an act done, or a decision made, on behalf of a person lacking capacity must be done or made in the person’s best interests. (emphasis added)

(2)       Without derogation from the generality of the principle stated in paragraph (1)(c), before an act is done or a decision is made which is restrictive of the person’s rights and freedom of action, regard must be had to whether the purpose for which the act or decision is needed can be achieved as effectively in a less restrictive way.”

51.     Accordingly, in exercising its powers under the 2016 Law, the Court must have regard to the best interests of the person lacking capacity. Article 6 of the 2016 Law gives guidance on what should be considered when making decisions on behalf of a person assessed as lacking capacity:

“6       Best interests

(1)      For the purposes of this Law, a determination as to what is in the best interests of a person lacking capacity –

(a)          must not be made merely on the basis of –

i)          the person’s age or appearance, or

ii)         any other aspect of his or her condition or behaviour;

(b)        must not be made unless, so far as reasonably practicable, the person lacking capacity has been permitted, encouraged and supported to participate as fully as possible in any act done for or any decision affecting that person; and

(c)        must consider all relevant circumstances, including in particular the matters set out in paragraphs (2) to (4).

(2)       Such a determination must include consideration of whether it is likely that the person lacking capacity will at some time have capacity in relation to the matter in question, and if so, when that is likely to be.

(3)       Such a determination must include consideration, so far as the following matters are reasonably ascertainable, of –

(a)        the past and present wishes and feelings of the person lacking capacity as to the matter in question (including in particular any advance decision to refuse treatment or other written statement made by that person at a time when that person did not lack capacity);

(b)        the beliefs and values of that person which would be likely to influence that person’s decision if that person did not lack capacity;

(c)        any other factors which that person would be likely to consider if that person did not lack capacity.

(4)       Such a determination must take into account, if it is practicable and appropriate to consult the following persons, the views of –

(a)        anyone named by the person lacking capacity as someone to be consulted on the matter in question or matters of that kind;

(b)        anyone engaged in caring for that person or interested in that person’s welfare;

(c)        any person on whom authority is conferred under a lasting power of attorney granted by that person and applicable to the matter in question; and

(d)        any delegate appointed by the Court under Part 4.

(5)       …..

(6)       In the case of an act done or decision made under this Law by a person other than the Court, it is sufficient if (having complied with the requirements of paragraphs(1) to (5)) the person reasonably believes that the act or decision is in the best interests of the person lacking capacity on whose behalf the act is done or the decision made.”

52.     The Court is empowered under Articles 24 and 28 of the 2016 Law to make orders and give directions in E’s best interests in all circumstances. The Delegate has a statutory duty under Article 35(4) of the 2016 Law, to act in E’s best interests at all times. She must make decisions on behalf of E that are in his best interests and without undue delay.

53.     The Royal Court has previously considered “best interests” in the case of In the matter of P [2019] JRC 002 which was concerned with an application for authority to execute a will on behalf of P, pursuant to Article 30 of the 2016 Law. The Court noted (at paragraph 17) that the provisions of the 2016 Law are very similar to the Mental Capacity Act 2005 and accordingly, the approach taken by the English Courts is helpful by way of guidance.

54.     On behalf of the Attorney, Advocate Kavanagh submitted that the following principles, extracted from the English case law cited, were relevant.

55.     The concept of “best interests” is a broad one. As Holman J said in NHS Trust v MB and another [2006] EWHC 507 (Fam) (at paragraph 16(v)):-

“Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision.”

56.     A holistic approach is to be taken to the application of the best interests test as made clear by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 at paragraph 26, but a holistic approach to determining “best interests” is not a “substituted judgment” test. As Lewison J said in In the matter of P [2009] EWHC 163 (Ch):-

“Fourth, the overarching principle is that any decision made on behalf of P must be made in P’s best interests. This is not (necessarily) the same as enquiring what P would have decided if he or she had had capacity. As the explanatory notes to the Mental Capacity Bill explained:- “best interests is not a test of ‘substituted judgment’ (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person’s best interests’.

38. I agree. It follows from this, in my judgment, that the guidance given under the Mental Health Acts 1959 and 1963 about the making of settlements or wills can no longer be directly applied to a decision being made under the 2005 Act … “

57.     Whilst the test is not a substituted judgment, it does require the Court to consider P’s preferences and likely preferences (see Aintree v James (2013) UKSC 67 at paragraph 24).

58.     In Re P (supra), Sir William Bailhache cited, with approval, the following extract from the judgment of Morgan J in Re G (TJ) [2010] EWHC 3005 (COP):

“The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor; Section 4(6)(a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor; Section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: Section 4(6)(c) says so. Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the Court’s decision. Further, in most cases, the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment P’s balance sheet of factors and P’s likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else which is relevant. However it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration. As Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests. That appeared to be the view of the Law Commission also (at para 55).”

59.     Sir William went on to say:

“28 However, we agree with the comments of Morgan J in Re G, namely that the statutory directions, in our case contained at Article 6(2)-(4) of the 2016 Law – may well have the practical effect that the outcome of the Court’s consideration of best interests will not be far away from the outcome of a substituted judgment test. It will not inevitably be so, but in many circumstances this will be the outcome because the past and present wishes and feelings are likely to align themselves with the beliefs and values of that person, which would be likely to influence that person’s decision if he or she did not lack capacity.”

60.     In terms of E’s ability to recognise the risks inherent in taking cannabis and associating with those who can supply it, Dr Stoffels made the following findings in her report:

(At para 5.6) “[E’s] daily routine requires intensive support. He needs prompting for hygiene, nutrition, and medication. Without this, he rapidly deteriorates into neglect, poor intake, and erratic sleep. He lacks appreciation of risk, often inviting peers with criminal histories into his home. His flat is frequently left in disarray following “party weekends,” with evidence of intoxication, drug use, and self-neglect. Support workers have recorded multiple incidents of intoxication, falls, and disorientation, necessitating close observation and, at times, emergency-service consideration. While under supervision, he can present as stable and cooperative; when unsupervised, he becomes chaotic, impulsive, and vulnerable to exploitation.”

(At para 5.7) “[E] has minimal understanding of his own risk behaviours. He acknowledges drinking and smoking cannabis but denies this has ever caused problems, despite multiple documented incidents of aggression, neglect, and psychosis. He struggles to link cause and effect across time, particularly when consequences occur days after the behaviour (e.g. missing work due to hangovers). He perceives interventions as punitive rather than protective. His self-monitoring and foresight are profoundly impaired. Without supervision, he rapidly becomes at risk of harm through intoxication, accidents, or assault. He remains vulnerable to criminal involvement and financial abuse.”

The Delegate’s decision

61.     The Delegate, in her affidavit in support of the application, recognised that her decision had to be taken in E’s “best interests” and that she should have particular regard to the factors detailed in Article 6 of the Capacity and Self-Determination (Jersey) Law 2016.

62.     She helpfully set out in her affidavit the various matters that she had considered by way of a balancing exercise in reaching her decision. These were as follows:

For

·         E wishes to receive pocket money and to spend it how he wishes.

·         There are advantages to E in managing a sum of money from a rehabilitation and independence perspective.

·         Pocket money serves as a good motivator for E to work and without it he is unlikely to do any work whether paid or unpaid.

·         Financially, E can afford to have a sum of money for his personal spending even without working.

·         I am advised that a complete withdrawal of pocket money would have a detrimental effect on E and his behaviour which would in turn affect his support workers.

·         That I should approach any decision about this seeking the least restrictive outcome for E.

·         That there is a risk that if E does not have funds, he may accrue a drug debt, obtain drugs for favours or result to criminal activity to obtain drugs.

·         People generally have a right to take a certain amount of risk in their lives and this includes E.

·         Paying pocket money to E is not an illegal act; and

·         E’s MDT currently believe balancing the risks that it is in E’s best interests to receive pocket money.

Against

·         There is a very likely risk that E will spend all of the money on illegal cannabis or alcohol.

·         Should E use the funds to purchase cannabis, this could be harmful to him and also poses specific additional harms to him given his [redacted].

·         E has been diagnosed with Cannabis induced psychosis; and

·         E is at high risk of exploitation and is vulnerable.

63.     The conclusion that the Delegate reached was explained in her affidavit in the following terms:

“In considering the above and after consulting with [E’s] MDT, I would like to make the decision that it is currently in [E’s] best interests to continue paying his pocket money in the sum of £50 per week. I believe that this balances [E’s] wishes, his right to a level of independence and the benefits of receiving money against the risks of how that money might be spent. I genuinely believe that to not pay [E] pocket money will cause him more harm both in terms of his own wishes and feelings (and a deterioration in his mental health) and also in terms of the risks to him of what he will do instead. I am aware of his strong desire to take cannabis and his complete disregard of all of the consequences (because he is unable to understand them). Accordingly, I think it is likely that he may start dealing drugs in order to be paid in drugs. I accept that it will always be a difficult balance to manage the risks to [E] but also allow him some financial independence and not overly restrict him. I believe there is a good team in place to support and protect [E] and that the best way to manage this risk effectively is for me to work in coordination with that team.”

Discussion

64.     We recognise that this is a highly unusual case and that the Delegate was faced with a very difficult decision. We were impressed with the lengths to which she went in identifying the issues and obtaining appropriate advice, which has been of assistance to the Court. It is also clear that the MDT responsible for E’s day to day care comprises individuals with appropriate expertise and who are conscious of the need to act in E’s best interests.

65.     We recognise that, as Ms Butler-Cole pointed out in her opinion, and as the Delegate noted in her evidence, E’s cannabis use is a welfare issue. However, it is also an issue in respect of property and financial affairs, since E can only purchase cannabis if his Delegate provides him with funds. Accordingly, whilst the Delegate seeks the Court’s blessing in relation to a financial decision, we must consider both elements together, as there is clearly an inter-relationship between E’s access to cannabis and the level of restriction required in his care package. As was noted in the opinion, if he had no money to purchase cannabis, he could potentially be subject to less support as, while the risks from cannabis use would be reduced, the wider issues, including cuckooing, and other risks to E unrelated to cannabis could increase.

66.     It is clear from the evidence placed before us that the MDT have been taking, and will continue to take, steps to reduce the likelihood of E purchasing cannabis with his pocket money. They have encouraged him to take up employment that is within his abilities, have taken measures to reduce the risk of “cuckooing” and have considered ways in which he can start to focus his attention on more positive activities, including taking on the responsibility of owning and walking a dog.

67.     E has consistently expressed strong views to his care team that he wishes to receive the full amount of his pocket money to spend as he wishes, and according to the Delegate it is clear that the receipt of these funds significantly motivates E to go to work. In reaching her decision, the Delegate recognised that E’s wishes are a significant consideration as is the principle of seeking the least restrictive outcome.

The views of the Attorney General as Partie Publique

68.     The Attorney, through Advocate Kavanagh, noted that the Court has jurisdiction pursuant to Article 24 and Article 28 of the 2016 Law, to decide whether it is in E’s best interests for the Delegate to continue to pay him pocket money, notwithstanding the risk that E may spend the funds advanced on illegal cannabis (or other illegal substances) and/or alcohol. The Attorney General agreed with the submissions made by the Delegate that it is in E’s best interests and submitted that there is no bar to the Court granting the order sought.

69.     The Attorney did however, quite properly, make clear that his submissions, as partie publique, should not be construed as expressing any view and/or indication regarding any potential future prosecution of offences, nor as granting immunity from criminal prosecution and expressly reserved his prosecutorial discretion.

Our decision

70.     As we have already noted, the Delegate was faced with having to make a difficult, and somewhat unusual, decision. She had to balance the risks of continuing to pay an, albeit modest, sum in pocket money in the knowledge that E might use it to purchase illicit cannabis, against the risk that stopping the pocket money would negatively impact his relationship with his carers and potentially lead to further acts of criminality by him.

71.     We took into account, in particular, E’s wishes to continue receiving pocket money and thus to have some degree of independence and the steps being taken by his carers to seek to reduce the likelihood of him purchasing cannabis.

72.     In the circumstances, having considered the evidence placed before us, we were satisfied that the decision taken by the Delegate was in E’s best interests. Had we been applying the Re S test we would also have approved the decision.

73.     For the avoidance of doubt, our decision is not to be regarded as the Court determining that it is in E’s best interests to commit a criminal offence or declaring that illegal conduct is lawful.

74.     We accordingly made the order requested, namely that:

“The Court approves the decision of the Delegate to advance funds to (“E”) in the form of pocket money, currently £50 per week, in circumstances where, in the exercise of the Delegate’s discretion, she considers it in E’s best interests to do so notwithstanding the risk that E may spend the funds advanced on illegal cannabis (or other illegal substances) and/or alcohol. The discretion of the Delegate shall continue to be guided by the advice of the Multi-Disciplinary Team responsible for E’s welfare, particularly Dr Martine Stoffels and Mrs Verity Boak (or such other professionals as may from time to time act in a similar capacity).”

https://www.jerseylaw.je/judgments/unreported/Pages/%5b2026%5dJRC002.aspx

Authorities

Capacity and Self-Determination (Jersey) Law 2016.

MM v A City Council [2021] EWCOP 62.

Justice v A Local Authority & Ors [2021] EWCA Civ 1527.

EG & Anor v P [2024] EWCOP 80 (T3).

Proceeds of Crime (Jersey) Law 1999.

Representation of A as Delegate for B [2018] JRC 225.

In re S Settlement [2001] JLR Note 37.

Zac v Estate of A (Deceased) (Capacity) [2021] JRC 074.

B v D (Matrimonial) [2023] JRC 029.

In the matter of P [2019] JRC 002.

NHS Trust v MB and another [2006] EWHC 507.

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.

In the matter of P [2009] EWHC 163 (Ch).

Aintree v James [2013] UKSC 67.

Re G (TJ) [2010] EWHC 3005 (COP).