A Court of Protection judge has clarified the circumstances in which family members may become personal welfare deputies for people aged over 18, calling for the Code of Practice under the Mental Capacity Act 2005 to be redrafted.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1)  EWCOP 22 Hayden J held a combined hearing for the cases of Domenica Lawson, Oscar Mottram and Oliver Hopton, whose parents had crowdfunded the case.
Mr Mottram is 24 and has autism, severe learning disabilities, epilepsy, anaphylaxis and gut problems. He lives in a self-contained flat in his parents' house and requires 24-hour care.
Ms Lawson is also 24 and has Down's Syndrome and a learning disability. She lives in a flat, supported by carers though spends much of her time with her parents.
The judge said Mr Hopton is aged 20 and has a diagnosis of severe autism, requiring constant supervision and support with everyday activities and lives with his mother and brother as he suffered assault and mistreatment in two residential placements.
The parents wish to have a family member appointed as a personal welfare deputy. However, the MCA states that decisions on behalf of adults should be taken collectively by everyone interested in their welfare, and the Code of Practice says that personal welfare deputies should only be appointed in ‘the most difficult cases’.
Law firm Irwin Mitchell, which acted for the applicants, said it was argued during the case that the families were ignored and decisions were taken without them being consulted. It was also claimed that these decisions were frequently taken by social services departments who did not know their children and that funding was a more important factor in such decisions than their children's best interests.
Mr Justice Hayden said he did not accept the primary submission of the applicants that the current case law was either contradictory or confused. "As I have sought to illustrate it 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."
However, the judge said the wording of the MCA Code of Practice at paragraph 8.38 was “reflective of likely outcome and should not be regarded as the starting point” and its wording “requires to be revisited”.
The paragraph states: “Deputies for personal welfare decisions will only be required in the most difficult cases where:
- important and necessary actions cannot be carried out without the court's authority; or
- there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions.” [Judge's emphasis]
Hayden J set out a number of clear principles:
- The starting point in evaluating any application for appointment of a personal welfare deputy must be by reference to the "clear wording" in the Mental Capacity Act 2005. This identifies a hierarchy of decision making in which the twin obligations to protect and to promote the personal autonomy of the protected person "remain central throughout".
- Whilst there is no special alchemy that confers adulthood on a child on his or her 18th birthday, it nevertheless marks a transition to an altered legal status, which carries both rights and responsibilities. It is predicated on respect for autonomy. The young person who may lack capacity in key areas of decision making remains every bit as entitled to this respect as his capacitous coeval. The extension of parental responsibility beyond the age of 18, under the aegis of a personal welfare deputy, "may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against".
- The structure of the Act and the factors considered under Section 4 might 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.
- This should not be interpreted as 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. "It requires to be emphasised, unambiguously, that this is not a presumption, nor should it even be regarded as the starting point."
- To construct an artificial impediment, in practice, to the appointment of a personal welfare deputy would be to fail to have proper regard to 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". It is guidance which, whilst it will require important consideration, will never be determinative. The power remains in the statutory provision.
- The prevailing ethos of the MCA is to weigh and balance the many competing factors that will illuminate decision making. It is that same rationale that will be applied to the decision to appoint a personal 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'. "This recognition of the importance of human autonomy is the defining principle of the Act. It casts light in to every corner of this legislation and it illuminates the approach to appointment of PWDs".
- 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.
- It is a distortion of the framework of Sections 4 and 5 MCA 2005 to regard the appointment of a personal welfare deputy as in any way a less restrictive option than the collaborative and informal decision taking prescribed by Section 5.
- The wording of the Code of Practice at 8.38 is "reflective of likely outcome and should not be regarded as the starting point. This paragraph of the Code, in particular, requires to be revisited."
Law firm Irwin Mitchell, which acted for the families, said the outcome meant their clients had been “given hope”.
Partner Alex Rook said: “This challenge was brought because our clients and many other parents believed that the law, which stated that they would only be appointed as deputies in ‘the most difficult cases', needed to be changed.
“All they want is to be able to help their children have the best chance in life but felt this was not happening because of how the law was interpreted.”
He added that the families hoped - now that Hayden J had decided that the code needs to be redrafted, making it clear that there is no presumption against them being personal welfare deputies - it would make it more common for family members to be appointed as personal welfare deputies.
Rook said that the three families in this case would now proceed with their applications, making it clear to the court why they consider it to be in their family member’s best interests that they are appointed as a personal welfare deputy.
"They can make their applications knowing that they do not need to convince the court that theirs is ‘one of the most difficult cases’, and to that extent, the case has been a success," he said.