Official guidance on personal welfare deputy appointments needs revisiting, says E&W Court of Protection

Thursday, 27 June 2019
The Mental Capacity Act 2005’s (MCA 2005’s) current code of practice requires revisiting where it suggests that personal welfare deputies should only be appointed in 'the most difficult cases', the England and Wales Court of Protection has pronounced.

The court has, historically, been reluctant to grant personal welfare deputyships (PWDs), partly because of the presumption in MCA 2005 that people should be assumed to have capacity unless proved otherwise. Only about 375 PWDs are appointed each year, compared to an average of around 15,000 property and affairs deputies.

This policy has become unpopular with parents of children who will never have full mental capacity, and who often feel excluded from decisions relating to their children when they reach majority. In such cases, there is usually conflict between the parents and the local council that assumes responsibility for the impaired person's welfare.

The matter came to a head this week in Re Lawson, Mottram and Hopton (2019 EWCOP 22), which dealt with three applications for permission to apply for the appointment of personal welfare deputies for young adults. They focused particularly on the question of whether such appointments should only be made 'in the most difficult cases' as the code of practice says. The Court of Protection's vice-president, Hayden J, had to decide whether the resulting presumption against such appointments was justified.

In his judgment, after examining the case law in detail, Hayden outlined a set of principles to govern the appointment of PWDs. He noted that 'the extension of parental responsibility beyond the age of 18, under the aegis of a PWD, may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against...The imposition of a legal framework which is overly protective risks inhibiting personal development and may fail properly to nurture individual potential.' Thus, he said, the most likely conclusion in most cases may well be that it is not in the best interests of the protected person for a PWD to be appointed.

However, he added, this must not be interpreted as a statutory bias or presumption against appointment. 'It requires to be emphasised, unambiguously, that this is not a presumption, nor should it even be regarded as the starting point', he said.

Noting that the code of practice is guidance and not statute, he said the paragraph of the code advising against appointing a PWD except in the most difficult cases 'requires to be revisited'.

Hayden's ruling implies that the code is wrong in this respect, commented mental capacity expert Alex Ruck Keene TEP of 39 Essex Chambers. Instead, each case should be decided on its merits, and by reference to whether an appointment is in the best interests of the protected person P, whose wishes and feelings will count towards that decision, for instance if it is clear that P would wish a family member to be appointed to be their deputy.

'In practical terms, one very clear implication of this judgment is that it will be necessary to explain in any application for appointment as a personal welfare deputy why the collaborative and informal decision-making structure that the MCA 2005 has put in place has not been serving P's interests', said Ruck Keene.

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