Deputies are required to engage with all the vicissitudes of life. On occasion, that might include their client possessing illegal items, or, developing or relapsing into substance misuse. There are challenges for deputies, not least the lack of authorities in this area and the significant confusion as to the interaction (or potential interaction) between the Mental Capacity Act and the criminal law.

Deputies come to me with a variety of concerns, they range from concerns about how P is using funds to purchase drugs, to P obtaining fake prescription medication on the dark web and questions about the provision of drug rehabilitation in circumstances where P is unable to consent to the treatment. In court, we have had to seek injunctions against aggressive drug dealers, address information sharing with the police where P has been accused of supplying drugs and grapple with safeguarding concerns when carers have used drugs with P.

P lacks capacity to use drugs

It is not unusual to see assessments of P’s mental capacity, “to use drugs.” These assessments are produced by private capacity assessors and those who are employed by statutory services. I am unconvinced by the sustainability of these assessments. The Mental Capacity Act 2005 is concerned with assisting a person in making a lawful decision. There is no such thing (again, despite assessments to the contrary) as the mental capacity to commit a criminal offence.

Of course, it is not the use of illegal drugs that is criminalised, rather, it is the possession of those drugs and their supply which is. Most of the issues which face a deputy in this regard directly relate to how P obtains drugs, how their care and support is impacted by them taking drugs and the risks experienced by a drug user.

Ultimately, the relevant decision is not whether P has the mental capacity to use drugs. Rather, it is more likely to be something relating to their financial management, for example, the mental capacity to manage everyday spending. Or, something relating to their care or contact with other people, for example the mental capacity to make decisions as to contact with a drug dealer or other drug users.

Properly framing the relevant decision will assist the deputy, or another decision maker, in managing the issue which is facing P. For example, there is nothing to prevent a mental capacity assessment as to contact with a particular individual including the risks that person poses to P as part of the relevant information. Equally, if the decision is, for example, the use of a pre-loaded credit or debit card for expenditure, the fact that P will likely withdraw cash to purchase drugs can be part of the relevant information.

In MM v A City Council [2021] EWCOP 62, the declaration was framed that MM lacked the mental capacity to: (i) manage his property and finances and (ii) make decisions to use and consume illicit substances. Unfortunately, that decision was relatively brief and arose from section 21A proceedings. What is missing from the canon of caselaw is a sequel to the decision in London Borough of Tower Hamlets v PB [2020] EWCOP 34. Such a sequel in the context of drug use (as opposed to alcohol consumption in PB which is inherently lawful for an adult) would be incredibly helpful and provide a roadmap to assessing capacity in these difficult cases.

Duty, authority and ethics

The Court of Protection’s approach to issuing guidance has been guarded to date, it has been done sparingly. However, cases involving drug use tend to reveal an inconsistency in approach as to who is responsible for managing difficult situations involving P and drugs. In some parts of England and Wales, local authorities do not consider situations arising from drug use to be a safeguarding concern and instead will rely entirely on the police to manage issues.

Deputies for property and affairs are careful to follow the decision in ACC & Ors [2020] EWCOP 9 and avoid any suggestion that they are exceeding their authority and trespassing into health and welfare matters. Faced with disengaged statutory services, the deputy may be left with the unenviable task of managing the risk associated with P’s drug use.

Equally undesirable are those situations where deputies have found themselves being challenged as part of safeguarding enquiries, or in health and welfare proceedings, as to why they are “funding” P’s drug use.

Ultimately, there is no convenient authority for deputies to point to which delineates their role and which explains the roles of the police and local authorities in these situations. The trend of the authorities (see for a recent example Surrey Police v PC [2024] EWHC 1274 (Fam)) is that the court expects statutory services to co-operate with each other to secure P’s welfare, that would include the police. This is reflective of the statutory framework around safeguarding. In my view, the Public Guardian and the Court of Protection would also likely expect the deputy to participate in these discussions, as many deputies already do.

The hinterland between the MCA and the criminal law

Following the decision in The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, I have been increasingly instructed to provide my opinion as to whether particular actions of deputies may expose them personally to criminal liability, or, may expose P to some form of liability.

It appears unlikely that a deputy would be so actively involved in P’s transactions in respect of drugs that they would cross the line into criminality. But until the nettle is grasped with regard to the issues outlined above, it remains something which should be carefully approached by deputies.

What is needed is a decision, preferably from a Tier 3 Judge, which deals with the intricacies of when P is a drug user and how that drug use should be approached in the context of the Mental Capacity Act.