The current legal battle involving Rosa Monckton, a close friend of Princess Diana, and a group of other parents of disabled children in the High Court has drawn the attention of the media and social welfare professionals alike. This test case is seeking to bring a change in the Court of Protection’s position on health and welfare deputyships. At present, to be granted a health and welfare deputyship, it is necessary to convince the court that the case is one of the most difficult of its type, with a series of linked medical or welfare decisions needing to be made. It is not a route to provide authoritative advocacy for an adult child with impaired capacity, as Rosa Monckton is challenging now.
The position being taken by the parents in this case certainly elicits empathy. We are frequently asked by parents of our clients what will happen when parental responsibility is removed. These are young people who it is reasonable to conclude will lack capacity at the age of 18 for a number of significant decisions. As those who work in this area will know, it is difficult to provide comforting answers. At best, a positive relationship with an engaged social worker can mean reassurance of inclusion but the fear of being shut out of your adult child’s life remains present.
Under section 16 of the Mental Capacity Act 2005 (MCA 2005), the court has authority to appoint a deputy to make decisions on behalf of an individual who lacks capacity (P) but a single decision is preferred to this appointment, and the deputy’s powers should be limited in scope and duration, as is reasonably practical in the circumstances. It is in this context that historically the approach to health and welfare deputyships taken by the court has been for single, time limited orders. We have seen from case law such as G v E  EWHC 2521 (Fam), a case in which a young adult with severe learning disabilities had been removed from his family and there had been a total loss of confidence in the public services, that the court considers that disagreements about care and treatment which cannot be resolved collaboratively should be referred to the court for determination.
The Court of Protection’s Code of Practice, which is currently under review, gives contradictory examples and guidance, which adds further to the confusion and uncertainty for parents in this area. The code refers to a welfare deputy being required if someone were to need to make a series of linked welfare decisions, but there is no definition of what these would be and why they couldn’t be made using the provisions in the MCA 2005. Section 5 of the MCA 2005 sets out the requirements for making a decision in an individual’s best interests when they lack capacity. It provides, under section 5(2), statutory protection against liability for not having that individual’s consent. This means that, so long as it is reasonable to believe that the person lacks capacity and the act is in their best interests, care and treatment decisions can be made without referral to the court or a deputy being required. When also considering section 4 of the Act, which is clear that not only should P’s wishes be heard but also that anyone interested in P’s welfare should be consulted, it is understandable that the court concludes welfare deputies not to be the preferred approach.
Against this context, we might wonder though what it is hoped this test case will achieve. There is no hope that appointing one parent as a health and welfare deputy will solve the issue of conflicting views between parents, separated or still together, or different views of interested family members. There will remain the possibility that very well-intentioned parents would unintentionally take this opportunity to impose over-protective views of how their child should live their lives. And would it really be enough to protect a vulnerable adult from zealous social care or medical professionals, who in the worst cases are carrying out actions which are in direct contradiction to the best interests principles referred to above under section 5. A deputy cannot be present to assert their authority at all times.
The authority of a health and welfare deputy may also create problems not appreciated by parents seeking this outcome. The authority provided covers decisions such as where P should live, with whom P should live, consent to medical treatment on P’s behalf as well as more day to day decisions such as diet, dress and leisure activities. However, it excludes decisions such as contact with others and any issue where it is believed that P has capacity to make that decision. In this case, the decisions parents may wish to make once the deputyship is held could become outside their remit if P has capacity to make them independently.
There may also be unintended consequences for the implementation of care arrangements. At present, a social worker can rely on the best interests principle under section 5 of the MCA 2005 and provisions in the Care Act 2014 to arrange care and support for individuals. However, if a welfare deputy vetoes these decisions, perhaps because they want a better provision of support, the social worker as decision maker is no longer protected from liability. The implications for care providers could be very problematic – if a social worker has arranged a care package for 12 hours a week, which a welfare deputy has rejected for being insufficient, can the care provider on the ground continue to provide this support without risk of repercussion? The Court of Protection has made it clear they cannot force statutory bodies to provide a higher level of service than is required under law, so neither will a health and welfare deputy.
These questions lead us to consider whether a health and welfare deputyship is likely to be appropriate, and therefore granted, in only the cases where there is already a high degree of agreement. In this case, what therefore is the point of the cost? In cases where disagreement is rife, the objections could see costs spiralling before a decision is even made and the outcome could be to rely instead on the current arrangement of a best interests decision or a one-off decision by the court.
With a brief word on costs, it is worrying that unless there is appropriate access to legal advice and funding then health and welfare deputyships will only be accessible to certain demographics – those with the available funds. Therefore, if health and welfare deputyships become the default position, it would need to be considered how access to this route is made available to parents and families from all demographics to avoid a huge swathe of vulnerable adults being left behind in terms of advocacy.
Perhaps an alternative is to continue to ensure that the MCA 2005 is implemented in all areas of social care, medical care and society as a whole. In spirit as well as in the narrow legislative sense. If trust and respect between family members and statutory bodies can be strengthened with all parties acting in the individual’s best interests, there should be no need for the safety net of a health and welfare deputyship. This would be an outcome to be hopeful for, although in reality we should not be entirely expectant.