“The efficacy of the MCA is dependent upon getting the balance right between empowering and protecting the incapacitous”

In the matter of Domenica Lawson [2019] EWCOP 22

David Lawson

Autonomy and protection are the two principles at the heart of the MCA. One of the many ways they push up against each other is in determining the role that families should take in making decisions about the welfare of their adult children. For any particular decision we can well see that objective decision making by engaged professionals may lead to a better outcome where there is proper respect afforded to P’s wishes and feelings as part of a full best interests consultation. But professionals can fall short of that exercise and too easily discount P’s wishes or the views of those who know him/her best. Can professionals have the same long term role as family – and even if they could, does the state any longer have the staff or the budgets to be engaged in someone’s life over the longer term? If not, is a personal welfare deputy the answer?

Section 16 (4) MCA tells us that a decision of the court should be preferred to a decision of a deputy and that the powers of a deputy should be as limited in scope “as is reasonably practicable in the circumstances”.

The Code of Practice gives guidance on this (with Hayden J’s emphasis of points open to doubt):

Personal welfare (including healthcare)

8.38 Deputies for personal welfare decisions will only be required in the most difficult cases where:

There has been a significant growth in the number of personal welfare deputyship applications, with a noticeable spike in respect of those who have recently turned 18. Managing the transition from childhood to adulthood poses a challenge for any parent, but parents of those with disabilities have also to contend with a change in professional support which is often badly managed through lack of resources. The Court obtained a statement from the Office of the Public Guardian which noted their concern that, in a minority of cases, some welfare deputies (1) make decisions in areas where the person has capacity, or has expressed clear contrary wishes, or (2) make unreasonable demands of professionals giving care. Dr Lucy Series gave evidence that between 2008 and 2017 fewer than half the 4,724 applications for personal welfare deputies were granted and that the statute was interpreted as a presumption against appointment.

These are the conclusions of Hayden J on how to balance competing factors in applications for a welfare deputy:

Can we give you a final conclusion? Hayden J said that there is no presumption against a personal welfare deputy (PWD), nor a starting point that one should not be appointed. However, he went on to comment that:

“The structure of the Act and, in particular, the factors which fall to be considered pursuant to Section 4 may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the Court to appoint a [welfare deputy] (para 53c):

At its essence, the MCA seeks to empower incapacitous people to make or to participate in making decisions for themselves whilst, equally, protecting them from harm when they are unable to do so. It is an equation in the true sense of the word, i.e. both imperatives are of equal weight. [41]