When will the Court of Protection appoint a health and welfare deputy?

The Court of Protection has powers to grant health and welfare deputyships in line with The Mental Capacity Act 2005 (MCA).

MCA 2005 lists the following five principles which are imperative when any decision is made on behalf of an individual whom has been deemed to lack capacity to make their own decision. The principles apply equally to property and affairs decisions as they do to health and welfare decisions. The principles are as follows:

1. A person must be assumed to have capacity unless it is established that he lacks capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests;
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action;

Appointing a deputy for health and welfare is uncommon and usually an option of last resort.

The Court may appoint a deputy where a decision is in dispute, the decision is complex and difficult, or ongoing decisions need to be made for a vulnerable person. For example, if consecutive medical treatments are required in a short period of time.

However, it is common for the Court to make an order in relation to a specific issue as oppose to delegating decision-making powers generally to a health and welfare deputy. This is because the Court prefers to retain powers in this respect given the sensitive and often complex nature of the decisions to be made.

Common Orders granted in relation to specific health and welfare issues are as follows: :

1. Where the protected party should live;
2. Who the protected party should live with;
3. The protected party’s day to day care, including diet and dress;
4. Consenting to medical and dental treatment;
5. The protected party’s care arrangements;
6. Leisure or social activities the protected party should takes part in;
7. Complaints about the protected party’s care or treatment.

Each order granted by the Court will list specific issues to be addressed and how. The Court might appoint a deputy formally but limit their powers to the specific issue. If that individual is faced with decisions outside of their power, they will need to apply to the Court for a further order that might extend their authority.