Appointing a Health and Welfare Deputy

I previously wrote a blog about Health and Welfare Deputy appointments.

I have recently had to revisit the Court of Protection’s approach to the appointment of Health and Welfare Deputy’s as my client (P), who has been deemed to lack capacity in respect of his care and support needs, has reached the age of 18. P’s parents approached me seeking to be appointed as a Health and Welfare Deputy for P in order to make all welfare decisions on P’s behalf.

Here is a useful reminder of how the Court of Protection might treat an application:

Attaining the Age of 18

When a child turns 18 it marks a transition to an altered legal status carrying both rights and legal responsibilities independent of parental responsibility. Up until the age of 18, P’s parents will have a legal right to be involved in the decision-making process.

Thereafter, where P continues to lack capacity, there is no absolute requirement for parents to be involved in the decision-making process, and the making of decisions will generally pass to professionals involved to make in P’s best interest (subject to the COP’s overriding protective jurisdiction).

As such parents will often find themselves considering an application to be appointed as a Welfare Deputy so that their involvement continues.

However, the current approach of the Court to the appointment of Welfare Deputies, as discussed below, will often mean that applications are unsuccessful, leaving families feeling frustrated and excluded.

Case Law

The Court’s approach was considered in the case of the case of Re Lawson, Mottran and Hopton (Appointment of personal welfare deputies) [2019] EWCOP 22 (Jayden J).

In this case the argument was put forward that the law and guidance on the appointment of a welfare Deputy was unclear.

The Court was asked the preliminary question of whether such appointments should only be made ‘in the most difficult cases’ and if so, what the implications for such an approach were in practice.

Mr Justice Hayden considered the application and the structure of the Mental Capacity Act 2005 (MCA) in detail alongside the case law, the Code of Practice accompanying the MCA and various other practical and factual evidence put forward by the parties.

In summary Hayden J dismissed the argument that the approach to the appointment of welfare deputies was unduly restrictive, 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 recognised that the three individuals were all from supportive families and praised them for that support. However, he also said that “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”.

Hayden J outlined several principles to be applied when appointing a Welfare Deputy. They can be summarised as follows:

1. It is not the case that a Welfare Deputy should be appointed in the ‘most difficult circumstances’ only;
2. The prevailing ethos of the MCA applies – that is to weigh and balance the many competing factors and make a decision in the best interest of P;
3.  P’s wishes and feelings as to who should act will be considered during the process;
4. Each case will be decided on its own facts and merits;
5. In practice, s4 and s5 of the MCA will mean that a Welfare Deputy will not be appointed often. This is because a young person should not be deprived of his legal rights and freedom due to his lack of or questionable capacity.

This case thus reaffirmed the Court’s approach. Some would argue that the decision brought clarity and assurance that interference with P’s capacity to be involved in the decision-making process will continue to be limited. It has also brought some assurance that the starting point of any application will be viewed more neutrally, i.e. without presumption that it will only be granted “in the most difficult cases”.

However, it has not fundamentally changed the Court’s approach, and the position remains the same insofar as a Welfare Deputy will likely only be appointed where matters are complex or where the specific decision in hand cannot be made in P’s best interest in any other way.

Some may therefore argue that the general underlying issue persists: families are still at risk of exclusion and there will still be room for failures to occur during the decision-making process, particularly if those who previously provided a significant degree of care during a child’s minority find themselves excluded once a child reaches the age of 18.