Does the Code of Practice dealing with the appointment of personal welfare deputies need revisiting?

In the recent case of Re Lawson, Mottram and Hopton (2019 EWCOP 22), the Court of Protection (the court which oversees and determines issues for those unable to make decisions for themselves either by reason of incapacity or age) has acknowledged that the official guidance on the appointment of personal welfare deputies needs revisiting.

As the name suggests, personal welfare deputies are people or professional bodies appointed by the Court of Protection to make decisions on behalf of someone unable to make them themselves in relation to that person’s personal welfare.

The current code of practice to the Mental Capacity Act 2005 suggests that personal welfare deputies should only be appointed in “the most difficult cases”.

Re Lawson, Mottram and Hopton dealt with three applications for permission to appoint personal welfare deputies under section 16 Mental Capacity Act 2005  by the parents of incapacitated young adults. The Official Solicitor, acting as representative for the incapacitated parties, opposed the applications.

The parents argued that the statutory test did not mean that personal welfare deputies should only be appointed in exceptional cases or, to adopt the wording of the Code of Practice, “the most difficult cases”.

The ‘preliminary issue’ in Re Lawson, Mottram and Hopton was: “What is the correct approach to determining whether a welfare deputy should be appointed?”

In particular focus was the question as to whether such appointments should only be made “in the most difficult cases” and, if so, to consider “what the implications for that are in practice?”

Hayden J hearing the case had to decide whether the usual presumption against such appointments was justified.

The court has, historically, been reluctant to grant personal welfare deputyships as reflected by the statistics which show that only around 375 personal welfare deputies are appointed each year, compared to an average of around 15,000 property and financial affairs deputies (again, as the name suggests, deputies appointed to look after an incapacitated person’s property and financial affairs).

Ms Butler-Cole, on behalf of the parents, made the following submissions:

1. centrally, and strongly disputed by the Official Solicitor, there is currently ‘confusion‘ and ‘lack of clarity’ as to the correct approach to be taken in the appointment of a personal welfare deputy;
2. the restrictive presumption on the appointment of personal welfare deputies is misconceived and has led to a different threshold for appointment in personal welfare as opposed to property and financial financial affairs;
3. the phrase ‘the most difficult cases‘ used in the Code of Practice, as part of the criteria of appointing personal welfare deputies is, on a proper construction, ‘apt to cover the relatively common scenario represented by these applicants’; and
4. the expressed or interpreted wishes and preferences of an incapacitated adult should play ‘a significant part’ in determining the application seeking to appoint a personal welfare deputy, given that the decision is a ‘best interests one‘ which automatically requires consideration of both the incapacitated party’s actual or likely wishes.

Mr David Rees, QC, on behalf of the Official Solicitor, in what the court referred to as “equally erudite submissions”, raised the following arguments in response:

1. in each individual case the court is required to determine whether (having regard to the principles in the Mental Capacity Act 2005) it is in the incapacitated party’s best interests to appoint a personal welfare deputy.
   While there should be no ‘starting point‘ or ‘presumption against the appointment of personal welfare deputies‘, the structure of the Mental Capacity Act 2005 and its principles mean that the likely outcome would be that the appointment of a personal welfare deputy will not usually be regarded as being in that party’s best interests;
2. a personal welfare deputyship should not become a process by which adults are effectively infantilised; and
3. the elevation of the importance of the incapacitated party’s wishes or likely wishes, implicit or perhaps explicit in Ms Butler-Cole’s argument, is a distortion of the defining principles of section 4 Mental Capacity Act 2005.

After examining the case law in detail, the judge outlined a set of principles to govern the appointment of personal welfare deputies.

He noted that “the extension of parental responsibility beyond the age of 18, under the aegis of a [personal welfare deputyship], may be driven by a natural and indeed healthy parental instinct but it requires vigilance to be guarded against”.

He went on to say that “the imposition of a legal framework which is overly protective risks inhibiting personal development and may fail properly to nurture individual potential.”

As such, he felt that the most likely conclusion in most cases may well be that it is not in the best interests of the protected person for a personal welfare deputy to be appointed.

However, Hayden J emphasised that this did not constitute a statutory bias or presumption against appointment nor should it even be regarded as the starting point, but rather the likely consequence of the application of the relevant factors to the individual circumstances of the case.

Noting that the Code of Practice is guidance and not statute, he said the paragraph of the code advising against appointing a personal welfare deputy except in the most difficult cases “requires to be revisited”.

It remains to be seen whether the code will be revisited. For the time being, however, it seems likely that personal welfare deputy appointments will remain relatively uncommon.

By Eleanor Goodridge, Solicitor at Hugh James