Health & Welfare Deputy Appointments – When are They Appropriate?

It has been widely reported over the years that the Court of Protection only rarely appoints Health and Welfare (also known as Personal Welfare) deputies, which is in stark contrast to the frequency of Property & Affairs appointments that are made. There are a number of reasons for this, and they are clearly summarised in the recent judgement In the matter of Domenica Lawson; In the matter of Oscar Mottram; In the matter of Oliver Hopton [2019] EWCOP 22.

The Case of Domenica Lawson, Oscar Mottram and Oliver Hopton – The Facts:

The families of three young adults, two young men with severe autism, and a young woman with Down’s Syndrome, had applied to the court to have parents or close family members appointed as deputies. Although the two young men were unable to live at all independently, the young woman is able to live in a flat supported by carers, and attend college four days a week. The parents all felt that it was in their children’s best interests to have a health and welfare deputy appointed to make decisions for them, and that the court had a tendency to be “unduly restrictive” when considering whether or not to appoint health and welfare deputies.

In response, The Honourable Mr Justice Hayden, Vice President of the Court of Protection, argued that the case law demonstrated that there is an increasing understanding that it is more important for the court to preserve the rights of a person to make their own decisions, even though that may open them up to later criticism, than it is for them to add restrictive and possibly unnecessary protection.

The applicable principles:

The judgement focuses on section 16 of the Mental Capacity Act 2005, which deals with the process of appointing a deputy, who makes the decision to appoint a deputy, and how long they should retain their powers for – ideally as short a time as possible.

When anyone reaches the age of 18, they automatically gain the rights and responsibilities of a full adult, no matter what their level of capacity. By appointing a health and welfare deputy, the court would be indefinitely extending the period of parental responsibility, and that was felt to be overly protective, and could hinder the personal development of the three young adults.

The Honourable Mr Justice Hayden said this did not mean that the court is biased against the appointment of health and welfare deputies, but is because they look at the relevant factors involved in each case before making a decision. In addition it was suggested that the wording in the Mental Capacity Act Code of Practice could be revisited to make it clear that there is no presumption against the appointment of Health and Welfare deputies but that every decision is dependent on the circumstances of the individual case.

Additional factors in making a decision when considering an application for a Health and Welfare appointment include Article 6 (Right to a fair trial) and Article 8 (Right to respect for private and family life) of the European Convention of Human Rights – both of which were central to this matter.

The outcome:

The Court held that in these particular cases the appointment of a Health and Welfare Deputy was not in the best interests of each person.

In essence the outcome of this case is not particularly surprising but the Judgement provides a comprehensive summary of the principles applicable to determining whether to appoint a Health and Welfare Deputy under the Mental Capacity Act 2005.

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