Do I need to apply for a Health and Welfare Deputyship?

Where a person lacks the necessary capacity to make decisions about their health and welfare the Court of Protection has always preferred to make a one-off decision rather than appointing a personal welfare deputy. Indeed, the Code of Practice stated that personal welfare deputyships would only be made “in the most difficult cases”.

This was challenged in the recent case of Re Lawson, Mottram and Hopton when Mr Justice Hayden, Vice President of the Court of Protection handed down a judgment setting out a list of principles which should be applied when deciding whether it is appropriate to appoint a personal welfare deputy.

What decisions can a Health and Welfare Deputy make?

According to the Mental Capacity Act 2005 a person lacks capacity if they are unable to make a specific decision, at a specific time, because of an impairment of, or disturbance in the functioning of the mind or brain. They must be unable to understand information relevant to the decision, retain it, weigh up the pros and cons and communicate their decision. One of the leading principles of the Act is that a person is assumed to have capacity unless proven otherwise.

If a person is unable to make welfare decisions such as where they live, who they live with, their care arrangements, medical and dental treatment and their leisure and social activities then they may need the Court to appoint a Deputy to make these decisions on their behalf. Deputies are supervised by the Office of the Public Guardian and will be required to produce annual reports setting out the health and welfare decisions that they have made on behalf of the person.

The Office of the Public Guardian has produced Guidance called “How to be a Health and Welfare Deputy”. It states that “the main rule in making health and welfare decisions for the person is that those decisions must always be in their best interests”. It further explains what is required when making a decision in a person’s best interests such as considering:

• Their past and present wishes
• Their beliefs and values
• The views of family members and carers
• Whether they might regain capacity so that the decision could be held off until then

This is often known as the “best interests” checklist and is set out in Section 4 of the Mental Capacity Act 2005. When the Deputy prepares their annual report for the Office of the Public Guardian they will be required to explain the significant health and welfare decisions made throughout the year, how the person was involved in the decision making process and who else was consulted.

Who can apply to be a Personal Welfare Deputy?

Any person over the age of 18 can apply to be a Deputy but in practice applications are usually made by concerned family members. They cannot be paid for any of the work they do although reasonable expenses can be claimed. Professional welfare deputies do exist although they are rare. They are allowed to be paid for the work they do when carrying out their role.

In this case brought before the Court of Protection the applicants were the parents of three young people with learning disabilities. When a child reaches the age of 18 their parents no longer have “parental responsibility” to make decisions pertaining to their health and welfare. This is a particular problem for parents of children who will never have full mental capacity as they find that suddenly a public body such as a local authority or NHS trust take the lead responsibility for making these decisions which they feel best placed to make. The Mental Capacity Act, Code of Practice and case law is clear that such decisions should be made “collaboratively and informally by individuals or groups of people consulting and working together” but in reality there is often conflict between the parents and authorities and the parents feel excluded. They often feel that the motivations behind such decisions are resource or funding led, rather than in their child’s best interests as they should be.

Section 5 of the Mental Capacity Act has a provision for carers which is designed to provide protection from liability so that they can act in connection with a person’s care or treatment and make certain decisions without the need for a deputyship. Actions that might be covered by Section 5 include personal care such as:

• Helping with washing, dressing or personal hygiene.
• Helping with eating and drinking.
• Helping with communication.
• Helping with mobility.
• Helping someone take part in education, social or leisure activities.
• Going into a person’s home to drop off shopping or to see if they are alright.
• Doing the shopping or buying necessary goods with the person’s money.
• Arranging household services.
• Providing services that help around the home.
• Undertaking actions relating to community care services.
• Helping someone to move home.

In respect of healthcare and treatment, this could include:-

• Carrying out diagnostic examinations and tests.
• Providing professional, medical, dental and similar treatment.
• Giving medication.
• Taking somebody to hospital for assessment or treatment.
• Providing nursing care.
• Carrying out any other necessary medical procedures or therapies.
• Providing care in an emergency.

The parents in this case argued that this provision did not extend far enough to protect their children because it does not give a substantive right to make more serious decisions such as where they should live and what care they should receive.

What principles has the new case introduced?

The principles that have been laid out by the Court are quite detailed, however they can be summarised as follows:

1. The presumption that personal welfare deputies should only be appointed in the most difficult cases as expressed in the Code of Practice should not be the starting point. However, there is an obligation to protect and promote a person’s ability to make their own decisions.
2. Parental responsibility cannot be extended beyond the age of 18 as it would risk “inhibiting personal development and may fail to nurture individual potential”. Instead every case must be considered individually in deciding whether it is in a person’s best interests to have a personal welfare deputy.
3. The wishes and feelings of the relevant person, where they can be established, must be considered alongside the factors in the best interests’ checklist but will not determine the success of an application.
4. The best interests checklist combined with Section 5 of the Mental Capacity Act 2005 mean that personal welfare deputies may not need to be appointed and that decisions regarding a person’s health and welfare can be made in a less restrictive way.

So when is a Health and Welfare Deputyship required?

It will be appropriate to make an application where a person lacks capacity and their condition is so complex that a series of linked welfare decisions over time have to be made and it would not be beneficial or appropriate to require all of those decisions to be made by the court through separate applications to Court which are both expensive and time-consuming. 

The Judge in this case explored the data provided by the Office of the Public Guardian regarding Health and Welfare Deputyships. He found a significant increase in the number of applications made for those between the ages of 18-24 and reflected that this is “precisely at a stage when all parents are most anxious about their children managing in an adult world”. It is recognised in the judgment that transition from child to adult services is a time of great stress and anxiety for families. He suggested that promoting good professional practice would be key, rather than effectively extending the scope of parental responsibility. The Judge felt that this would have been too restrictive of the need to promote independence and allowing young people to make their own decisions, where possible.

If an application is to be made for a health and welfare deputyship then it must be shown that the decision-makers have been prevented from working together to support the person in the “collaborative and informal” manner with the relevant authorities. Robust evidence must be provided to show that frequent decisions to be made about the relevant person go beyond Section 5 so as to require the Deputyship to be put in place.

How do I apply to become a Health and Welfare Deputy?

The application for Deputyship includes the completion of paperwork for the Court, including a statement of the person’s personal circumstances, a medical certificate regarding the capacity of the client and a deputy’s declaration. These will need to be fully completed and returned to the Court of Protection with the commencement fee. In certain circumstances the fee can be waived if it can be shown that the fee would cause hardship. 

For more information on health and welfare deputyships and how we can help please contact our Court of Protection team by email on cop@boyestuner.com.