Appointment of personal welfare deputies: Court of Protection clarifies principles

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The Court of Protection has set out some helpful guidance on the principles to apply when deciding whether to appoint a personal welfare deputy. Personal welfare deputies can be appointed to deal with decisions concerning personal welfare issues (such as medical treatment, housing, care etc.) which cannot be made by the person who has lost mental capacity.

The appointment of personal welfare deputies is quite rare and guidance in the Mental Capacity Act 2005 (‘MCA’) Code of Practice has led to an assumption that a personal welfare deputy should only be appointed in the most difficult of cases. However, in the recent case of Re Lawson [2019] EWCOP 22, 2019 WL 02603279, the Court of Protection has clarified the position by setting out the principles underpinning the MCA and explaining the other factors to consider.

Case summary

The case concerned applications by the family members of three young adults lacking capacity and required the Court of Protection to consider the correct approach to determining whether a personal welfare deputy should be appointed under the MCA s.16.

Each of the three adults had supportive parents, and in each case the parents or other close family members were the proposed deputies. Section 16(4) MCA contains two principles to which the court should have regard when considering an application to appoint a welfare deputy.

  1. Where possible, the court should make the decision itself in preference to appointing a deputy, and
  2. If a deputy needs to be appointed, their appointment should be as limited in scope and for as short a time as possible.

The 2007 Code of Practice (which is due to be replaced by a new version shortly) states at paragraph 8.38:

“deputies for personal welfare decisions will only be required in the most difficult cases where: important and necessary actions cannot be carried out without the court’s authority or there was no other way of settling the matter in the best interests [of the patient]”.

The family members submitted that there is an unduly restrictive regime for appointment of welfare deputies.

The Decision

The judge concluded that the case law emanating from the Court of Protection demonstrates a gradually and increasingly understanding of the court’s responsibility to draw back from a risk averse instinct to protect P and to keep sight of the fundamental responsibility to empower P and to promote their autonomy. Accordingly, the judge emphasised that there is no presumption against the appointment of a personal welfare deputy and this should never be seen as the starting point.

He then went on to list the following key principles which will be of interest to practitioners and parties considering the merits of an application to the Court  of Protection for a personal welfare deputy

  • The starting point in evaluating any application for appointment of a personal welfare deputy was by reference to the clear wording of the MCA. Part 1 of the MCA identifies a hierarchy of decision-making in which the dual obligations, both to protect the patient and promote their personal autonomy, remain central.A child’s 18th birthday marks a transition to an altered legal status, which carries both rights and responsibilities. It is predicated on respect for autonomy. A young person who might lack capacity in key areas of decision making remained as entitled to that respect as his capacitous coeval (person having the same age). The extension of parental responsibility beyond 18 under the aegis of a personal welfare deputy might be driven by a natural parental instinct, but it is to be vigilantly guarded against. Imposing an overly protective legal framework risks inhibiting personal development and failing to nurture individual potential.
  • The factors which fell to be considered pursuant to s.4 MCA might mean that in the majority of cases the court will find that it is not in the patient’s best interests to appoint a personal welfare deputy. This does not mean that there is a statutory bias or presumption against appointment. It is the likely consequence of the application of the relevant factors to the individual circumstances of the case.
  • To construct an artificial impediment to the appointment of a personal welfare deputy would be to fail to have proper regard to the unvarnished words of the Act and would compromise a fair balancing of the ECHR art.6 and art.8, which were undoubtedly engaged.
  • The Code of Practice is not a statute, it is an interpretive aid to the statutory framework. It is guidance and would never be determinative.
  • The prevailing ethos of the Act was to weigh and balance the many competing factors which will illuminate decision making. That same rationale will be applied to the decision to appoint a personal welfare deputy.
  • The only presumption in the Act is that set out in s.1(2) MCA, namely that a person is to be assumed to have capacity unless it is established that they lack it. That recognition of the importance of human autonomy is the defining principle of the Act and illuminates the approach to appointment of personal welfare deputy.
  • The patient’s wishes and feelings and the other factors contemplated by s.4(6) MCA have to be considered where they can be reasonably ascertained. None was determinative and the weight to be applied will vary from case to case in determining where the patient’s best interests lie.
  • It is a distortion of the framework of s.4 and s.5 MCA to regard the appointment of a personal welfare deputy as a less restrictive option than the collaborative and informal decision-taking prescribed by s.5 MCA.
  • The wording of the Code of Practice at paragraph 8.38 was reflective of the likely outcome and should not be regarded as the starting point. That paragraph of the Code should be revisited

This article is written as a general guide. Any course of action must be based upon your individual circumstances as we strongly recommended that you obtain specific professional advice before you proceed. We do not accept any responsibility for action which may be taken as a result of having read this article.

If you or your clients would like to discuss this article, or any other matter related to Court of Protection applications and/or deputyship then please contact us.