The Court of Protection has historically adopted a cautious approach when dealing with the appointment of a personal welfare deputy. It has never been common practice for a welfare deputy to be appointed to make decisions on behalf of an incapacitated individual generally, given the sensitive nature of the decisions to be made. It is usual practice for a welfare deputies’ powers to be limited to specific issues/decisions or for a direction dealing with an isolated welfare matter to be given by the Court instead of a general appointment.
The Courts approach was called in to question in the case of Re Lawson, Mottran and Hopton (Appointment of personal welfare deputies)  EWCOP 22 (Jayden J).
In this case the argument was put forward that the law and guidance on the appointment of welfare deputies is unclear. The Court was asked the preliminary question of whether such appointments should only be made ‘in the most difficult cases’ (as per the Code of Practice) and if so, what the implications for that were in practice.
The protected parties in question, were all young adults over the age of 18 and who presented with complex learning difficulties. Such individual’s welfare needs are complicated and are often the subject of welfare proceedings. It appears the individual applications were for the appointment of family members as welfare deputies.
Those applications were combined in order to seek to persuade the Court to clarify practice and procedure when dealing with the appointment of a welfare deputy. The combined application was paid for by Crowd Funding as it was identified that the point raised by the applicant and their families would likely have much wider application for vulnerable and young adults.
Whilst the protected parties all came from supportive families, the Court recognised that in making its decision, “there is a wider variety of cases to contemplate. These will include, for example, complex medical conditions; acquired catastrophic brain injury; issues relating to undue influence; deputies who are non-family members and/or professional deputies”.
The Vice President of the Court of Protection, Hayden J looked at the application and structure of the Mental Capacity Act 2005 (MCA), case law, the code and various other practical and factual evidence put forward by the parties.
In summary Hayden J dismissed the argument that the law was unclear stating as follows:
“As I have sought to illustrate [the law] has evolved and refined as the Court has been required to address the challenging and diverse issues that have come before it. It is also discernible that the Court is gradually and increasingly understanding its 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 his or her autonomy”
Hayden J outlined a number of principles to be applied when appointing a welfare deputy at paragraph 53 of the judgement. They can be summarised as follows:
- The starting point is by reference to the wording of the MCA 2005. “Part 1 of the Act identifies a hierarchy of decision making in which the twin obligations both to protect P and promote his or her personal autonomy remain central throughout”;
- When a child turns 18, it marks a transition to an altered legal status which carries both rights and legal responsibilities independent of parental responsibility. A young person should not be deprived of those rights due to his lack of or questionable capacity. To do otherwise would risk being “overly protective and may fail properly to nurture individual potential”.
- The structure of the Act and the factors to be considered under Section 4 “may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the Court to appoint a personal welfare deputy”;
- “The above is not in any way to be interpreted as a statutory bias or presumption against appointment”.
- Article 6 (fair trial) and Article 8 (protection of private life) are engaged and must be balanced during the process, to do otherwise will fail to have regard for the ‘unvarnished words’ of the MCA 2005.
- “The Code of Practice is not a statute, it is an interpretive aid to the statutory framework, no more and no less”;
- The prevailing ethos of the MCA applies to weigh and balance the many competing factors that will illuminate decision making applies to the appointment of a Welfare Deputy;
- There is only one presumption in the MCA, namely that set out at Section 1 (2) i.e. ‘a person must be assumed to have capacity unless it is established that he lacks capacity’;
- “P’s wishes and feelings and those other factors contemplated by Section 4 (6) MCA will, where they can be reasonably ascertained, require to be considered. None is determinative and the weight to be applied will vary from case to case in determining where P’s best interests lie (PW V Chelsea and Westminster Hospital NHS Foundation Trust and Others  EWCA 1067)”;
- It is imperative that P’s rights and freedoms are not restricted and that their legal capacity in respect of welfare decisions is not deprived by the appointment of a deputy with general and wide decision-making powers;
- The Code of Practice is reflective of likely outcome and it is not the case that a welfare deputy should be appointed in the ‘most difficult circumstances’.
The Court did not make a decision on the appointment of welfare deputies for the individual protected parties so as to afford them the opportunity to reflect upon the judgement and decide on whether to pursue their respective applications.