In Re XY, the Court of Protection provided important guidance on the scope of personal welfare deputyship and the Court’s overriding role in best interests decision making.
The judgment, given by HHJ Hilder, addressed two points of general application. The first was whether decisions about internet and social media use fall within the scope of a standard deputyship order. The second was whether the Court of Protection can make a best interests decision where a welfare deputy is authorised, willing and able to do so.
Scope of welfare deputyship powers
On the first issue, the Court held that a deputyship order positively defines the extent of a deputy’s powers. Decisions relating to internet and social media use were described as distinct from offline contact or leisure activities and so authority to make decisions in this area is not implied by general welfare deputyship and must be expressly sought at the time of application, with clear reasons provided.
Deputyship and the Mental Capacity Act decision-making framework
In considering whether to vary the deputyship order to include such powers, HHJ Hilder emphasised that the statutory MCA framework of collaborative decision-making under sections 1, 4 and 5 remains the default.
While acknowledging the practical challenges faced by public bodies, including resource pressures and the complexity of safeguarding situations, the Court made clear that deputyship should not be used as a workaround for those difficulties and that this was not what Parliament intended.
The Court’s ultimate role
Although not directly on the point she was asked to address, HHJ Hilder also confirmed that the Court of Protection is the ultimate arbiter of P’s best interests and retains the power to make a best interests decision itself, even where a deputy has authority.
Why this matters
This decision reinforces a restrictive approach to welfare deputyship and will be of particular interest to local authorities and health bodies involved in safeguarding and complex welfare decisions.
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