David Rees QC analyses an important Court of Protection decision on the appointment of personal welfare deputies.
Judgment has been handed down in Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1)  EWCOP 22 a test case addressing the correct approach that should be taken by the Court of Protection when appointing personal welfare deputies. The case concerned three applications for permission to apply for the appointment of personal welfare deputies under section 16 of the Mental Capacity Act 2005 (‘MCA 2005‘) by parents of incapacitated young adults.
Both parties affirmed that the court should have regard to the “unvarnished words” of the MCA 2005 when considering the appointment of a deputy. Where they differed was that the applicants denied that the outcome of the statutory test should be that welfare deputyships would only be granted in exceptional cases or, in the terms of the MCA 2005 Code of Practice, “the most difficult cases”.
Interpretation of the Code of Practice and the MCA 2005 had, in the applicants’ view, led to confusion and a lack of clarity regarding the appointment of welfare deputies. The result was that personal welfare deputies were not being appointed in circumstances where they should otherwise have been: the scenario represented by the applicants in the case was relatively commonplace and the phrase “the most difficult cases” in the Code of Practice covered such applicants and many others.
The applicants also argued that the approach to appointing a welfare deputy should take account of the realities of implementation of the MCA 2005 on the ground (where it was alleged that statutory bodies with responsibility for the provision of community care services were appointing themselves as decision-makers for incapacitated people), and that the actual or likely wishes and preferences of the incapacitated adult should play a significant part in determining whether a welfare deputy should be appointed.
By contrast, the Official Solicitor argued that the structure of the MCA 2005 and the factors that fall to be taken into account under s4 MCA 2005 mean that the “normal” or “usual” outcome is that it will not be in the best interests of P for the court to appoint a welfare deputy. The comments in the Code should be seen not as a gloss on the statute, but rather as a reflection of the likely outcome of the unvarnished statutory test.
In his judgment, Hayden J, Vice President of the Court of Protection, found that the starting point in evaluating any application for the appointment of a personal welfare deputy must be by reference to the clear wording of the MCA 2005. The twin obligations to protect P and to promote his or her personal autonomy as found in Part 1 of the Act apply throughout. Beyond this, the structure of the Act and the factors which fall 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 welfare deputy. It was emphasised that this did not constitute a statutory bias or presumption against appointment, but rather the likely consequence of the application of the relevant factors to the individual circumstances of the case.
The points raised in this case are also instructive for those involved in property and affairs matters in the Court of Protection. In his judgment, Hayden J referred to statistics provided by the Office of the Public Guardian which demonstrated that the average duration of property and affairs deputyships was usually shorter than welfare deputyships, and that individuals subject to a welfare deputyship were on average younger than those subject to property and affairs deputyships. He considered that one reason for this discrepancy might be the desire of parents of children with significant disabilities to protect them as they entered adulthood.
On behalf of the Official Solicitor I also drew the court’s attention to the fact that, while the same statutory test was to be applied in both property and affairs and personal welfare cases, the likely conclusion might well be different on the basis that the prevailing factors to be taken into account when determining best interests would not be the same. This accords with Baker J’s suggestion in G v E  EWHC 2512 (COP) that the appointment of a deputy is likely to be more common for property and affairs than for personal welfare. Hayden J did not have to deal with this point in his judgment, but it seems highly probable that property and affairs deputyships are likely to remain significantly more common than personal welfare deputyships.