In three conjoined appeals the CoP was asked to clarify practice and procedure in the appointment of personal welfare deputies (PWDs): should they only be made “in the most difficult cases”?
Parents of children with congenital impairments that are likely to render them as lacking capacity to make their own health and welfare decisions long term, will be used to making decisions on their behalf, as they have parental responsibility. However, once they reach 18 the Mental Capacity Act 2005 (MCA) transfers responsibility for such decisions to professionals involved in their care, with the parents' views being considered but not determinative.
While a professional may have the advantage of being objective, families can feel decisions are being taken by someone who does not know their child well, does not give proper weight to their views and is more influenced by funding pressures.
Under the MCA, the CoP can appoint a PWD who can make decisions in relation to the health and welfare matters of an individual. This could be seen as an opportunity to extend parental responsibility beyond 18.
There has been a significant growth in the number of PWD applications, especially for those who have just turned 18. However, the court has been reluctant to appoint PWDs because the MCA Code of Practice states they should only be appointed in ‘the most difficult cases" (paragraph 8.38).
The conjoined appeals
On 25 June 2019, the Vice President of the CoP gave judgment in Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) clarifying when family members might become PWDs and calling for paragraph 8.38 of the MCA Code of Practice to be redrafted.
The case concerned three young people in their early 20s whose families had crowdfunded the application. Their parents wished to have a family member appointed as a PWD.
Mr Justice Hayden concluded that, in deciding whether to appoint a PWD, you should not presume or start from the point that one should not be appointed. This is despite the fact that the likely outcome in the majority of cases will be that one is not appointed.
The Vice President emphasised the need to preserve an adult’s autonomy (as opposed to extending parental responsibility through a PWD).
Those who lack capacity should be supported to make or participate in making decisions for themselves, with the safety net of protecting them from harm when they are unable to do so. The answer does not lie in eroding autonomy by appointing a PWD, but instead by promoting good professional practice in those tasked with making decisions on behalf of incapacitious adults.
Following Mr Justice Hayden’s review of the MCA, the MCA Code of Practice and case-law, health and care professionals now have a set of 11 principles to govern the appointment of PWDs which are set out at paragraph 53 of the judgment.
Alex Ruck Keene of 39 Essex Chambers has neatly summarised these principles as follows:
- The Code of Practice is wrong insofar as it suggests that the starting point is that personal welfare deputies should only be appointed in the most difficult cases;
- Each case falls to be decided on its merits, and by reference to whether an appointment is in the best interests of P;
- P’s wishes and feelings will form an aspect of that decision (for instance if it is clear that P would wish a family member to be appointed to be their personal welfare deputy);
- The proper operation of section 4 and section 5 means that, in practice, personal welfare deputies will not often be appointed, in particular because the appointment should not be seen, in and of itself, as less restrictive of P’s rights and freedoms than allowing for the normal operation of section 5 decision-making.
The applicants have been left to reflect on whether they want to pursue their applications. If so, their applications will have to be considered in light of the 11 principles.