“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
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:
- important and necessary actions cannot be carried out without the court’s authority, or
- there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions.
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:
- “the Court is gradually and increasingly understanding its responsibility to draw back from a risk averse instinct to protect P and to keep sight of the fundamental responsibility to empower P and to promote his or her autonomy” (para 51).
- “The starting point in evaluating any application for appointment of a [welfare deputy] is by reference to the clear wording of the MCA 2005” (para 53a).
- “Whilst there is no special alchemy that confers adulthood on a child on his or her 18th birthday, it nevertheless marks a transition to an altered legal status, which carries both rights and responsibilities. It is predicated on respect for autonomy.” Whilst recognising the parental instinct to protect, Hayden J made it clear that this should not allow any dilution of respect for that autonomy, saying: “As a judge of the Family Division and as a judge of the Court of Protection I have seen from both perspectives the acute distress caused by inadequate transition planning. The remedy for this lies in promoting good professional practice. It is not achieved by avoidably eroding the autonomy of the young incapacitous adult” (para 53b).
- The passage of the Code of Practice (quoted above) is reflective of a likely outcome and is not a starting point. It needs to be revisited (para 53k).
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].