G v E

This is a further judgment in proceedings in the Court of Protection brought by G concerning her younger brother E, a young man aged 20 who suffers from severe disabilities attributable to a rare genetic condition called tuberous sclerosis, and as a result lacks capacity within the meaning of the Mental Capacity Act 2005 (“MCA”). On 26 March 2010, I delivered a lengthy judgment dealing with a number of issues that had arisen as a result of the removal of E by the local authority responsible for providing him with support from the care of F with whom he had lived in foster care for a number of years as a child and subsequently under an adult placement. In that judgment, in which I considered a number of complex legal issues raised by the parties and which is now reported at [2010] EWHC 621 (Fam), [2010] 2 FLR 294, I held and declared, that the local authority had infringed E’s rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by removing him from F’s care without proper authorisation, failing to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter, failing adequately to involve F in the decision making process about E’s future and restricting contact between E and F for several months after his removal. I further held, and declared, that the local authority had unlawfully deprived E of his liberty and infringed his rights under Article 5 of ECHR by placing him at a residential unit known as V unit, without seeking authorisation under the Deprivation of Liberty Safeguards in Schedule A1 of the MCA or an order of the Court of Protection, and by subsequently placing him at another residential establishment, known as Z Road run by an organisation known as X Ltd, without seeking an order of the court. By the time of that judgment, E had been away from F’s care for ten months and at that point I thought that it would not be in his best interests to be returned to her care without further assessments. I therefore directed that those assessments be carried out for a further review hearing and that, in the interim, E should continue to reside at Z Road, with increased contact with F and his sister G. By May 2010, however, on the basis of evidence by then available, I was able to conclude that it was now in E’s best interests to return to F’s care and accordingly I made an order to that effect. E duly returned to F’s care where he quickly and easily settled in, and has continued to have regular contact with G and her family.

In July 2010, I conducted a further hearing at which more issues were raised. One concerned the question whether I should lift the anonymity previously imposed on the local authority about which I had made a number of serious critical findings at the earlier hearing. Having received submissions on this point, including from the Press Association on behalf of the media, I concluded that the anonymity should be lifted and therefore identified the local authority as Manchester City Council.

Two further issues were considered at the hearing in July and it is these matters which form the subject of this reserved judgment. The first is an application by G and F for the appointment of deputies on behalf of E under the MCA. Specifically, the application is for an order that F and G be appointed deputies, jointly and severally, for E’s personal welfare, and an order that G and a professional, as yet unidentified, be appointed deputy for his property and affairs. The local authority opposes the application for deputies for personal welfare but is neutral on the application for the appointment of deputies for property and affairs. The Official Solicitor, who currently represents E in these proceedings, is opposed to any appointment of a deputy. The second application is by G (supported by F) for an order that she should be appointed in lieu of the Official Solicitor to act as litigation friend on behalf of E for the purposes of all future legal proceedings, in particular these proceedings and any future proceedings for damages against Manchester City Council. This application is opposed by both the Official Solicitor and the local authority.

These applications have involved further extended legal argument, and the first application, as to deputyship, requires further consideration of the relatively new and often complex provisions of the MCA which introduced wide-ranging reforms into the legal regime governing the care of persons who lack capacity. It is becoming increasingly clear that this statute is going to have a profound impact on the social care system in this country as we all face up to the challenges of caring for incapacitated adults, not only those who were born with limited capacity but also those who have acquired it through injury and, more commonly, through the normal process of aging. The provisions of the MCA, including those concerning deputyship, are of great social relevance and, while they received consideration by experts in the field as part of the reform process, they have not, perhaps, received as much attention from the media and the general public as their importance warrants, and as a result there may be a number of misconceptions about the details of the new law. As will become clear, this case, in my view, illustrates one example of such a misconception.

It is unnecessary to recite the background history at any length. It is set out in great detail in my earlier judgment. Nor is it necessary for the purposes of this judgment to recite in any detail the events that have occurred since that judgment, beyond reporting the following matters. First, as stated above, E has now returned to live with F in May and all the evidence demonstrates that he has thrived in her care. Secondly, the plans for E to attend college have crystallised. At the time of the hearing in July, it was anticipated that he would be starting college in September. This reserved judgment is being written in that month and I hope that the plan has come to fruition. Thirdly, there has been a change of social worker team, and relations between the local authority and the family (by which I mean, of course, not only E and G but also F and her own children) have significantly improved. Fourthly, it has been agreed that E, who has been assessed by the local authority as someone whose needs call for the provision of community care services under section 47 of the National Health Service and Community Care Act 1990 should receive a direct payment to secure the provision of those services in accordance with section 57 of the Health and Social Care Act 2001 as amended and the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 SI 2009/1887.

Finally, it is important to note that E has continued to have regular contact with his sister G and her family. Manifestly, G, who has known E all his life, will continue to play a very important role in his future. In paragraph 164 of my previous judgment, I acknowledged the very considerable contribution made to the proceedings by G and observed that it is unquestionably to E’s benefit to have a sister who is so interested and involved in his life. Subsequent events have only served to reinforce this opinion.

G’s determination to continue to play an active role in E’s life is a prime motivating factor in her application to be appointed a deputy on his behalf, as I shall explain in due course, when I consider the factual elements behind the application. But first, I turn to consider the legal provisions concerning deputyship under the new regime established by the MCA. In doing so, I pay tribute to the industrious and insightful submissions made by all counsel.

The provisions set out in the MCA are supplemented by the Mental Capacity Act 2005: Code of Practice (“the Code”) prepared and issued by the Lord Chancellor pursuant to the mandatory obligation imposed on him by section 42 of the MCA. Section 42(4) imposes a duty on various categories of person (including deputies) to “have regard” to the Code. Although carers (other than those acting in a professional capacity under section 42(4)(e)) are not under such an obligation, the Introduction to the Code itself states:

Although some aspects of the provisions of the MCA and Code concerning deputyship have been considered by some judges in earlier cases (notably Hedley J in Re P [2010] EWHC 1592 (Fam)) there was not, at the date of the hearing before me, any reported case containing a comprehensive analysis of the provisions. Subsequently, Miss Street, counsel for the Official Solicitor, supplied a copy of a decision of His Honour Judge Turner QC, as yet unreported, which does contain such an analysis. His characteristically wise and perceptive comments have been most helpful.

Section 1 of the MCA sets out the basic principles which apply for the purposes of the Act. Of particular relevance in this case, as in every case, is section 1(5) providing:

It is also important to bear in mind section 1(6):

These principles must be applied by the court when considering an application for the appointment of a deputy. As His Honour Judge Turner says, of these two principles, it is the best interests principle that takes priority, as the wording of the two sub-sections makes clear.

The Code gives further guidance about the best interests principle and who it applies to in chapter 5, headed: “What does the Act mean when it talks about ‘best interests’?” Of particular relevance is the following passage:

This principle covers all aspects of financial, personal welfare and health care decision-making and actions. It applies to anyone making decisions or acting under the provisions of the Act, including

family carers, other carers and care workers

health care and social care staff

attorneys appointed under a Lasting Power of Attorney or registered Enduring Power of Attorney

deputies appointed by the Court to make decisions on behalf of someone who lacks capacity, and

the Court of Protection.”

A little later under the heading “Who can be a decision-maker?” the Code gives further guidance as follows:

For most day to day actions or decisions, the decision-maker would be the carer most directly involved with the person at the time.

Where the decision involves the provision of medical treatment, the doctor or other member of health care staff responsible for carrying out the particular treatment or procedure is the decision-maker.

Where nursing or paid care is provided the nurse or paid carer will be the decision-maker.

If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.”

Section 4 of the MCA makes a number of provisions about the application of the best interests principle. Section 4(2) provides that a person making a determination of what is in the best interests of the person lacking capacity must consider all the relevant circumstances and, in particular, take the steps outlined in the following sub-sections. Of particular relevance for this case are the following:

Central to the submissions made in this case about the interpretation of the relevant provisions governing deputyship is section 5 of the MCA, and in particular the following sub-sections:

D does not incur any liability in relation to the act that he would not have incurred if P (a) had had capacity to consent in relation to the matter, and (b) had consented to D’s doing the act.”

These provisions do not amount to a general authority to act on behalf of P. Rather, they merely provide a defence in the event that an action carried out for P is subsequently challenged. In this respect, the statutory provisions are similar to the previous law which was derived not from statute but from common law under the so-called “principle of necessity”: see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1. Prior to the passing of the MCA, the Law Commission in its report entitled “Mental Incapacity” (Law Com no. 231) had proposed that there should be a “general authority” providing legal authorisation for acts connected with the care of P, provided such acts were reasonable in the circumstances. The Law Commission’s draft bill included provision for such a “general authority”. In the event, following criticism from various quarters, the “general authority” was not included in the MCA as ultimately passed, and instead the law is cast in section 5 as set out above in the form of a defence.

Chapter 6 of the Code, entitled “What protection does the Act offer for people providing care or treatment?” explains the operation of section 5 in these terms:

Take decisions about their own care or treatment, or

Consent to someone else caring for them.

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 (for example, day care, residential accommodation or nursing care)…

Helping someone to move home…

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.

These actions only receive protection from liability if the person is reasonably believed to lack capacity to give permission for the action. The action must also be in the person’s best interests and follow the Act’s principles…”

These detailed provisions, and the policy underpinning them, feature strongly in the Official Solicitor’s arguments set out below.

The power to appoint a deputy is set out in section 16 of the Act, which I recite in full:

This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning

P’s personal welfare, or

P’s property and affairs.

The court may

by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or

appoint a person (a “deputy”), to make decisions on P’s behalf in relation to the matter or matters.

When deciding whether it is in P’s best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that

The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under sub-section (2).

Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the court for an order, directions, or an appointment on those terms.

An order of the court may be varied or discharged by a subsequent order.

The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy

Of these provisions it is section 16(4) that has attracted particular attention in the hearing before me. Again, the terms of that provision, and the policy considerations underpinning it, feature prominently in the Official Solicitor’s argument. I shall consider later the rival submissions I have heard on this point.

The powers under section 16 are specified (although not exhaustively) in section 17 (as to personal welfare) and section 18 (as to property and affairs). However, section 20 imposes certain restrictions on deputies by providing inter alia that some of the powers particularised in sections 17 and 18 may not be given to a deputy. Thus, a deputy for personal welfare may not be empowered to prohibit a named person from having contact with P or directing a person responsible for P’s health care to allow a different person to take over that responsibility: see section 20(2). Those powers are therefore retained by the court. Similarly, a deputy may not be given powers with respect to the settlement of any of P’s property, or the execution for P of a will: see section 20(3). These powers are also therefore retained by the court. Section 20(5) also provides that a deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P. Decisions about such matters must therefore be taken by the court.

Chapter 8 of the Code gives detailed guidance about the role of the Court of Protection and court-appointed deputies. Of particular importance are the following provisions:

help people take action or make decisions in the best interests of someone who lacks capacity to make decisions about their own care or treatment, or

find ways of settling disagreements about such actions, or decisions.

particularly difficult decisions

disagreements that cannot be resolved in any other way (see chapter 15), or

situations where ongoing decisions may need to be made about the personal welfare of a person who lacks capacity to make decisions for themselves.

An order of the court will usually be necessary for matters relating to the property and affairs (including financial matters) of people who lack capacity to make specific financial decisions for themselves, unless:

their only income is state benefits… or

they have previously made a Enduring Power of Attorney or Lasting Power of Attorney to give somebody authority to manage their property and affairs…”

Further on in chapter 8, under the heading “What decisions can the court make?” the Code provides as follows:

there is no EPA or property and affairs LPA in place and someone needs to make a financial decision for a person who lacks capacity to make that decision (for example, the decision to terminate a tenancy agreement) or

it is necessary to make a will or to amend an existing will, on behalf of the person who lacks capacity to do so.

there is genuine doubt or disagreement about the existence, validity or applicability of an advance decision to refuse treatment (see Chapter 9)

there is major disagreement regarding a serious decision, (for example, about where a person lacks capacity to decide for themselves where they should live)

a family carer or a solicitor asks for personal information about someone who lacks capacity to consent to that information being revealed (for example, where there have been allegations of abuse of a person living in a care home)

someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual (the court could stop that individual contacting the person who lacks capacity).”

Under the heading “What are the rules for appointing deputies?” the Code next gives the following guidance:

Under the heading “How does the court appoint deputies?” the Code provides:

Paragraphs 8.34 to 8.39 of the Code provide further guidance as to when a deputy might be appointed. Under the subheading “Property and Affairs”, the following guidance is given:

for dealing with cash assets over a specified amount that remain after any debts have been paid

for selling a person’s property, or

where the person has a level of income or capital that the court thinks a deputy needs to manage.

Under the subheading “Personal welfare (including health care)” the Code states:

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.

Examples include when:

someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court. For example, someone (such as a family carer) who is close to a person with profound and multiple learning disabilities might apply to be appointed as a deputy with authority to make such decisions.

the most appropriate way to act in the person’s best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions

there is a history of serious family disputes that could have a detrimental effect on the person’s future care unless a deputy is appointed to make necessary decisions

the person who lacks capacity is felt to be at risk of serious harm if left in the care of family members. In these rare cases, welfare decisions may need to be made by someone independent of the family, such as a local authority officer. There may even be a need for an additional court order prohibiting those family members having contact with that person”.

The Code contains a number of other provisions concerning deputies of which it is only necessary to refer to the following. Deputies must only make decisions the court has given them authority to make (paragraph 8.50). Deputies are under both a duty of care and a fiduciary duty with regard to P (8.56) and are unable to delegate their decision making responsibilities (8.6). Deputies are both accountable to the Court of Protection and subject to supervision by the Office of the Public Guardian.

Finally, I note the provisions of chapter 15 of the Code headed “What are the best ways to settle disagreements and disputes about issues covered in the Act?”, which stresses that in general disagreements can and should be resolved by formal or informal procedures without recourse to the court, although there are some decisions that are so serious that only the court can make them (paragraph 15.6). Chapter 15 gives detailed guidance about methods of settling disagreements.

As stated above, G and F make common cause on this issue, arguing that they should both be appointed to act jointly and severally as deputies for E’s personal welfare, and that G, plus a further independent deputy, should be appointed deputy for his property and affairs.

Both F and G gave evidence in support of this application. In her final statement, F said inter alia at paragraph 22:

She re-iterated this in her oral evidence. The main welfare decisions that she foresaw arising in future concern E’s medical treatment. It is likely that E will have to undergo a series of operations at some point in the future. He has a tumour behind his left eye and nodules on his kidneys which may require surgical treatment. The decision whether or not he should undergo these operations may not be straightforward. F said that she would like to be able to sign consent for those operations without going through social services. She also wants to be able to decide whether, and if so when, E should go for respite care, and whether, and if so when, she should take him on holiday. She acknowledged, however, in cross examination by Miss Irving QC on behalf of the local authority, that, if E is awarded an individual budget so that direct payments are paid to him under the 2001 Act and 2009 Regulations, she will, as the “suitable person” nominated to receive the direct payment, be able to make decisions as to holidays and respite care without reference to the local authority. So far as education is concerned, it is hoped that E will be able to attend college for three years although at present funding has only been agreed for twelve months. When he leaves college, it is likely that he will attend a day centre. F wants to be able to make a decision about that without reference to the social services. In addition, F recognises that there may come a time when she will no longer be able to care for E. She wants to be the one, in conjunction with G, to decide what should then happen to him. F repeated the observation she had made at the earlier hearing that she sees herself as E’s mum. She also said in cross-examination by Miss Irving that one of the reasons why she wanted to be a deputy was to stop the local authority removing E from her care again.

In her statement, G said (inter alia) at paragraph 6:

In her oral evidence, G said that it was her understanding that if she and F were not appointed deputies, social services would be responsible for making the decisions with respect to E. She also sees one advantage of her appointment as a deputy being that it would enable her to be involved in the long term care of E, acknowledging that, in her words, F is “not going to be around forever”. She thought her appointment as a joint and several deputy for personal welfare would “help to take the pressure off F”. Cross-examined by Mr Allen on behalf of F, she said that she thought E would want decisions about his future to be taken by F and herself rather than the court. Cross-examined by Miss Irving, she said: “to put it bluntly, I’m E’s big sister. I’ve cared for him since I was six and I want to carry on for as long as possible. It [i.e. being appointed deputy] would give me a strong sense of being responsible.”

In support of their clients’ case, Mr Allen on behalf of F and Miss Bretherton on behalf of G, make a series of submissions which largely complement each other and can fairly be considered together.

First, Miss Bretherton submits that the lacuna in the law caused by the absence of a general authority to make decisions on behalf of an incapacitated person has been closed by the introduction of the power to appoint a deputy. Under the previous law, although a number of individuals had power to make specific decisions, no individual had a general power to make decisions. Parliament had declined to adopt the Law Commission’s proposal that there should be a statutory general authority, preferring to replicate the previous approach of creating a defence, previously derived from the principle of necessity, and now found in section 5. The absence of a general authority to act and take decisions was, submitted Miss Bretherton, justification for the appointment of deputies in cases such as this.

Secondly, Mr Allen and Miss Bretherton submit that the appointment of members of the family of an incapacitated adult to act as deputies is in accordance with the right to respect for family life under article 8 of the ECHR. They remind me of the evidence from both F and G quoted above in which each observed how being appointed as deputy would reinforce their respective roles as E’s “mum” and “big sister”.

In support of these two submissions, Mr Allen and Miss Bretherton rely on a passage in the judgment of Hedley J in Re P [2010] EWHC 1592 (Fam), delivered on 13 May 2010. That case concerned a thirty-year-old man who is blind and autistic and therefore permanently dependent on one-to-one care but also endowed with an exceptional music talent that enables him to perform regularly in public and thereby earn a significant income. That case, like this one, has engendered several reported judgments. In the report of the judgment delivered on 13 May, Hedley J made an order appointing three members of P’s family as deputies for welfare and property matters. In giving judgment, Hedley J said inter alia in paras. 7-9:

The learned judge then quoted section 16(4) in full and proceeded as follows:

Mr Allen and Miss Bretherton rely on this passage as indicating the general approach to be adopted by courts considering whether or not to appoint deputies.

Thirdly, Mr Allen and Miss Bretherton submit that the potentially difficult decision that may have to be taken at some point in the future as to whether E should undergo a series of operations brings the case squarely within paragraph 8.39 of the Code, which gives, as one example of a case where a personal welfare deputy will be required, the situation where a series of linked welfare decisions are required and it would not be beneficial or appropriate to require those decisions to be made by the court. It would, submits Miss Bretherton, be impracticable and expensive to have to return to court for such decisions.

Fourthly, it is submitted that, were he to have capacity, E would unquestionably identify F and G as the persons he would like to make decisions on his behalf and that appointing them to act as deputies is therefore consistent with his best interests, having regard to section 4(6). Mr Allen points out that, if E had at any stage had capacity, he could have executed a LPA and thereby appointed his family members to act in that capacity.

Fifthly, it is submitted that, in considering all the circumstances of the case, the court must have regard to the disreputable and, as I have found, unlawful conduct of the local authority and it would therefore be appropriate to appoint deputies as sought to buttress the family against further unlawful interference by the local authority. Notwithstanding the fact that the fundamental decisions about E’s future have now been taken by this court, rather than the local authority, Mr. Allen submits that there is a risk that the local authority may again exceed its powers and contends that this local authority is subject to the mindset identified by Munby J (as he then was) in A Local Authority v A and B, the Equality and Human Rights Commission intervening [2010] EWHC 978 (Fam) at para. 50-58 under which local authorities assume and act as if they have complete and effective control over persons such as E. There is, adds Miss Bretherton, a problem of perception, not only with local authorities such as Manchester City Council, but also other agencies, accentuated by the fact that F is not in fact a blood relative of E, but rather, his former foster carer.

Finally, although E has at present only limited savings amounting to some £900, it is submitted that his pending claim for damages against the local authority, based not only on the breaches of ECHR that I have found but also on other alleged causes of action, gives rise to a likelihood that E will at some point be entitled to a capital sum so as to take his financial circumstances beyond the range of statutory benefits so as to justify the appointment of deputies for Property and Affairs. Miss Bretherton indicated in the course of argument that a claim for interim damages was likely to be made shortly. It is acknowledged that the appointment of such deputies imposes obligations such as the filing of accounts, but Miss Bretherton submits that the proposal that an independent person be appointed in that capacity alongside G will mean that no significant burden is imposed on her.

On behalf of the Official Solicitor, Miss Street submitted that the interpretation of the statutory provisions concerning deputies advanced on behalf of G and F was a misreading of the language and policy of the MCA. She submitted that the Act and the Code create what she characterises as a hierarchy of decisions and decision makers. The vast majority of decisions are taken by those individuals involved in the care, treatment and support of P, either individually or collaboratively, without any application to the court and without any individual or group of individuals being given any special status such as deputy. More serious decisions may be referred to the court which, under section 16, may either make the decision itself or appoint a deputy to do so. Miss Street submits, however, that the terms of section 16(4) are clear and that, as a result, a decision by the court is to be preferred to the appointment of a deputy to make the decision and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

In support of her submission that the vast majority of decisions are taken informally, without the involvement of the court or appointment of a deputy, Miss Street relied on paragraph 5.8 of the Code which makes it clear that many different people may be required to make decisions on behalf of a person lacking capacity. Most obviously, for most day-to-day decisions, the decision maker will be the carer most directly involved with P, in this case F. The Official Solicitor submits that the scheme of the Act is that persons such as F do not need a specific status such as deputyship to have the authority to make day-to-day decisions.

The Code further anticipates that other decisions will be taken by other people (for example, that medical decisions will be taken by medical professionals) and, further, that there will be other times when a joint decision needs to be taken by a number of people (paragraph 5.12). The power to make these decisions does not depend on any specific general authority but is, submits Miss Street, an inherent feature of the scheme established by the Act and the Code, consistent with the principles in section 1(5) and (6) and protected by the statutory defence created by section 5.

Further support for Miss Street’s contention that the Act assumes that many decisions may be taken without reference to the Court is found in paragraphs 8.3 and 8.4 of the Code quoted above. The Official Solicitor also submits that the provisions of chapter 15 of the Code, which encourage the settling of disputes by agreement rather than recourse to the court wherever possible, are also consistent with this interpretation. The whole scheme of the Act and Code, submits Miss Street, is to encourage collaboration between the various family members and professionals responsible for P’s care, without recourse to the courts and without elevating any single individual into a special status of decision maker.

The second level of decisions is those matters that have to be referred to the court. Some matters are specifically reserved for court decision. Other cases may be referred to the court where there is a disagreement between those otherwise involved in making the decision and other methods of resolving that dispute have been tried and failed.

Miss Street submits that, when considering the appointment of deputies in the context of this overall structure of decision-making set out in the Act and Code, section 16(4), far from “sitting uncomfortably” with the rest of the statute, is in fact entirely consistent with its underlying principles. It is contrary to the principle of informal and collaborative decision making to elevate an individual into a formal position of decision maker. Thus it is entirely fitting, submits Miss Street, that a decision by the court is to be preferred to the appointment of a deputy and that, when it is considered appropriate for a deputy to be appointed, the scope and duration of the appointment should be limited to what is reasonably practicable in the circumstances. Miss Street submits that, insofar as Hedley J in Re P was making a statement of general application as to the interpretation of the statutory provisions as to appointment of deputies and in particular section 16(4), he was wrong in law. In particular, she takes issue with his comment that: “since the principle of appointing deputies is fundamental to this part of the Act, it must be appreciated that section 16(4) has to be read in the context of the fact that, ordinarily, the court will appoint deputies where it feels confident that it can…” Miss Street points out that in that case the principle that a deputy should be appointed was not in dispute and that none of the relevant provisions of the Code to which I have been referred (in particular paragraphs 5.1, 5.2, 5.8, 5.9, 8.38 and 8.39) are cited in the judgment. In contrast, Miss Street invites the court to accept and adopt the analysis of His Honour Judge Turner QC in the recent decision in Havering LBC v LD and KD (unreported, 25 June 2010) in which he said inter alia (at para. 42):

Applying these legal principles to the facts of this case, Miss Street submits that the circumstances do not justify the appointment of a deputy for personal welfare decisions. There are no current issues concerning E’s welfare which would require the decision of the court, let alone the appointment of a deputy. Matters such as the arrangement of holidays and respite care will be decided by F as the “suitable person” nominated to receive E’s individual budget under the 2001 Act and 2009 Regulations. Decisions about E’s education should, Miss Street submits, be taken collaboratively by F, G and appropriate relevant professionals, rather than F and G as deputies. Decisions as to medical treatment should, she adds, be taken by relevant medical staff, who are under a duty to consult with family members, including F and G. In the event of dispute, issues about treatment can be referred to the court. Miss Street submits that it is inappropriate to appoint deputies to take decisions about a possible series of operations where the necessity for and timing of such operations is as yet unclear. Miss Street further submits that a decision concerning the arrangements for E’s care in the event that F is no longer able to care for him would be properly a matter for the court rather than for the appointment of a deputy at this stage, having regard to the terms of section 16(4). So far as the application for the appointment of deputies for property and affairs is concerned, Miss Street submits that such an appointment would be premature. The need for a deputy to be appointed to manage any damages that may be awarded to E against the local authority should be considered when that need arises, depending on all the circumstances, including the size of the award. The Official Solicitor, through Miss Street, further submits that the role to be played by a deputy under the statutory scheme of direct payments is limited, and in effect otiose, given that the local authority is required to satisfy itself (a) as to the suitability of the person to whom money is paid (under section 57(1C)(c) of the 2001 Act) and (b) whether the person identified will act in the best interests of P and appears to be capable of managing the direct payment (under Regulation 8(5)(b)(i) and (ii) of the 2009 Regulations). The Official Solicitor submits that the appointment of a deputy in every case where an incapacitated adult is awarded an individual budget would be unnecessary and costly.

Finally, Miss Street submits that the submissions made on behalf of F and G, that their appointment as deputies is in accordance with Article 8 of the ECHR and a necessary and appropriate means of reinforcing their family relationship with E, are misconceived and a misreading of the policy underpinning the Act. In making that submission, Miss Street stresses that the Official Solicitor fully appreciates the importance of their respective roles in E’s life, but submits that it is neither necessary nor appropriate for them to be appointed deputies in order to perform those roles.

The local authority, perhaps understandably in view of the history of the case, is largely content to leave the decision to the court. Miss Irving indicated that if there was any way in which G could be appointed as deputy for property and affairs, the local authority would support that course, on the basis that “if it makes G feel more involved in his welfare, it has got to be in E’s best interests”. The local authority was less supportive of the proposed appointment of F and G as deputies for E’s personal welfare, given the narrow terms in which the provisions about such appointments in the Act and Code are drafted.

I broadly accept the submissions made on behalf of the Official Solicitor. I acknowledge and sympathise with F and G’s wish to be fully responsible for managing E’s life and affairs. It seems to me, however, that Miss Street’s analysis of the law is irrefutable.

The vast majority of decisions about incapacitated adults are taken by carers and others without any formal general authority. That was the position prior to the passing of the MCA under the principle of necessity: see Re F (supra) and in particular the speech of Lord Goff of Chieveley. In passing the MCA, Parliament ultimately rejected the Law Commission’s proposal of a statutory general authority and opted for the same approach as under the previous law by creating in section 5 a statutory defence to protect all persons who carry out acts in connection with the care or treatment of an incapacitated adult, provided they reasonably believe that it will be in that person’s best interests for the act to be done. Crucially, however, all persons who provide such care and treatment are expected to look to the Code. Certain categories of person are required by the statute, under section 42(4), to have regard to the Code (for example, anybody acting in relation to the incapacitated person in a professional capacity). In addition, however, as the Code itself makes clear, the Act applies more generally to everyone who looks after incapacitated persons, including family carers. Although not legally required to have regard to the Code, the Code itself stipulates that they should follow the guidance contained therein insofar as they are aware of it.

The Act and Code are therefore constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care. This case is an example of what can go wrong when people do not work together. Where there is disagreement about the appropriate care and treatment, (which cannot be resolved by the methods suggested in Chapter 15) or the issue is a matter of particular gravity or difficulty, the Act and Code provide that the issue should usually be determined by the court. The complexity and/or seriousness of such issues are likely to require a forensic process and formal adjudication by an experienced tribunal.

To my mind, section 16(4) is entirely consistent with this scheme. Manifestly, it will usually be the case that decisions about complex and serious issues are taken by a court rather than any individual. In certain cases, as explained in paragraphs 8.38 and 8.39 of the Code, it will be more appropriate to appoint a deputy or deputies to make these decisions. But because it is important that such decisions should wherever possible be taken collaboratively and informally, the appointments must be as limited in scope and duration as is reasonably practicable in the circumstances.

Clearly, practicalities will be an important consideration in determining an application for the appointment of a deputy. As the examples in paragraphs 8.38 and 8.39 demonstrate, it is sometimes impracticable to insist on decisions being taken by the court. The instances which stand out are those which involve a series of decisions (for example, about medical procedures) and where the assets of an incapacitated adult are of a magnitude that requires regular management. Common sense suggests that the second of these examples is likely to arise more frequently than the first, and that the appointment of deputies is likely to be more common for property and affairs than for personal welfare. As Her Honour Judge Marshall QC observed in Baker v H [2010] 1WLR 1103 at para. 32

If Hedley J’s comments in paras 8 and 9 in the judgment in Re P were intended to indicate that family members should as a matter of course be appointed deputies irrespective of the circumstances, I would respectfully disagree. But I do not read his judgment in that way. The unusual facts of Re P - the extraordinary gifts bestowed on P which enable him to have a career as a performer and earn significant sums of money - mean that many decisions will have to be taken about his personal welfare and property and affairs over and above the normal decision making involved in caring for a person who lacks capacity. Since it would be manifestly impracticable in those circumstances for the Court of Protection to make those decisions, the appointment of deputies was unavoidable and indeed desirable. As I read Hedley J’s judgment, this was agreed by all parties and the issue to be determined by the court was the identity of the deputies. The greater part of that judgment is devoted to the terms on which the deputies were to be appointed and, in particular, whether an independent deputy should be appointed in addition to members of the family. As I read Hedley J’s judgment, his comments about the importance of the family were directed more to the question of who should be appointed as deputy rather than the question of whether any deputy should be appointed at all.

It is axiomatic that the family is the cornerstone of our society and a person who lacks capacity should wherever possible be cared for by members of his natural family, provided that such a course is in his best interests and assuming that they are able and willing to take on what is often an enormous and challenging task. That does not, however, justify the appointment of family members as deputies simply because they are able and willing to serve in that capacity. The words of section 16(4) are clear. They do not permit the court to appoint deputies simply because “it feels confident it can” but only when satisfied that the circumstances and the decisions which will fall to be taken will be more appropriately taken by a deputy or deputies rather than by a court, bearing in mind the principle that decisions by the courts are to be preferred to decisions by deputies. Even then, the appointment must be as limited in scope and duration as is reasonably practicable in the circumstances. It would be a misreading of the structure and policy of the statute, and a misunderstanding of the concept and role of deputies, to think it necessary to appoint family members to that position in order to enable them better to fulfil their role as carers for P.

On the facts of this case, the application for the appointment of F and G as personal welfare deputies is, in my judgment, misconceived. The routine decisions concerning E’s day-to-day care, including decisions about holidays and respite care can be taken by F as his carer. Decisions about his education should be taken collaboratively by F, G, his teacher, and other relevant professionals. Decisions about possible medical treatment should be taken by his treating clinicians, who will doubtless consult both F and G and others as appropriate. If there is any disagreement about any of these matters, an application can be made to the Court of Protection. Decisions about who should look after E in the event that F is no longer able to do so should equally be considered (when the need arises) in a collaborative way and only referred to the court for endorsement if required or if there is any disagreement. That is an issue for the very long term and it would be wholly inappropriate to appoint a deputy or deputies now to make that decision.

I have already acknowledged on a number of occasions the devotion and dedication which F and G have each shown towards E. This court will do whatever it properly can to support their commitment. I sympathise with their feelings that their commitment would be buttressed by being appointed as deputies for E’s personal welfare. In my view, however, the law does not permit such an appointment for that purpose, and the circumstances of this case do not warrant such an appointment at this stage.

I am also unpersuaded that the appointment of deputies for property and affairs is justified at this point. Currently, E’s income consists of state benefits alone and his savings are less than one thousand pounds. The local authority and the Official Solicitor have demonstrated that the management of his independent budget under the direct payment scheme provided in the 2001 Act and 2009 Regulations do not justify the appointment of a financial deputy. I recognise that an appointment of a deputy for property and affairs would become appropriate were E to acquire assets of a size that required the sort of management decisions described in section 18. That might occur, for example, were he to be awarded a significant sum of damages as a result of his forthcoming claim against the local authority. I acknowledge that it might be necessary to make such an appointment at short notice, for example, as Miss Bretherton suggests, if a significant interim award of damages is made. In those circumstances, the application can be renewed before me, preferably with the independent deputy, who it is proposed would work alongside G, identified as ready and willing to act in that capacity. But at this stage, an appointment of a deputy for property and affairs would be disproportionate and premature.

The second application arising for consideration at this stage is made by G that she be appointed deputy with power to conduct litigation on behalf of E and to replace the Official Solicitor as E’s litigation friend.

The provisions concerning the appointment of a litigation friend in the Court of Protection are set out in part 17 of the Court of Protection Rules 2007. As a general rule, a person who lacks capacity (“P”) must have a litigation friend: rule 141 (1). A person may act as a litigation friend on behalf of P if he or she (a) can fairly and competently conduct proceedings on behalf of P and (b) has no interest adverse to those of P: rule 140 (1). Under rule 143:

the Official Solicitor; or

some other person

The court may act under paragraph (1)

either on its own initiative or on the application of any person; but

only with the consent of the person to be appointed

An application for an order under paragraph (1) must be supported by evidence.

The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions specified in rule 140 (1).

The court may at any stage of the proceedings give direction as to the appointment of a litigation friend.”

In support of G’s application to replace the Official Solicitor as litigation friend, Miss Bretherton makes the following principal submissions.

G can fairly and competently conduct proceedings on behalf of E.

It was G who started these proceedings and successfully claimed that Manchester City Council had acted unlawfully and in breach of articles 5 and 8 in its treatment of E.

G has no interests adverse to E. Indeed she has always sought to put his interests first and has no personal interest either in these proceedings or in the proposed claim for damages.

In those circumstances, her application must succeed.

The Official Solicitor is a representative of last resort and it is his policy only to act when no other suitable person is able and willing to do so.

Accordingly the Official Solicitor will be acting ultra vires if he continued to act as litigation friend in these proceedings.

E has a potential claim for damages against the Official Solicitor arising out of a number of complaints (listed in paragraph 30 of Miss Bretherton’s position statement for the July hearing.)

Thus, even if the Official Solicitor is not acting ultra vires by continuing to act as litigation friend, the court in the exercise of its discretion should terminate his appointment and replace him with G.

In reply, Miss Street on behalf of the Official Solicitor makes the following principal submissions.

Section 1(5) applies to the court’s decision when considering an application to appoint or replace a litigation friend. That decision must be made in E’s best interests.

It would not be appropriate to appoint G as litigation friend. It is questionable whether she could fairly and competently conduct the proceedings on E’s behalf because it is doubtful whether she would be able to exercise the necessary impartial judgment, given her strong feelings about the way E, and G herself, have been treated by the local authority. The Official Solicitor relies inter alia on the following passage from G’s own statement dated 15 July 2010 (paragraph 8):

The complaints made against the Official Solicitor as listed in paragraph 30 of Miss Bretherton’s position statement are untenable and without foundation. The Official Solicitor has no interest adverse to E.

The fact that the Official Solicitor is already acting as litigation friend is an important consideration in deciding whether or not he should continue in that role.

Given the importance of G and the local authority working together in E’s best interests, it would be unhelpful if G were at the same time to be pursuing a claim against the local authority on E’s behalf.

The issues that have arisen in these proceedings, and may arise in future, are complex. In such circumstances it is in E’s best interests that he should be represented by a litigation friend such as the Official Solicitor with experience in the field.

I begin by considering Miss Bretherton’s submissions that E has a potential claim against the Official Solicitor. Plainly if that were correct, it is likely that the Official Solicitor would have an interest adverse to E and would therefore be ineligible to continue as litigation friend. Miss Bretherton submits that it is unnecessary for the court to consider whether the complaints and potential claim have any merits, but it seems to me that this is unavoidable. I must consider, at least on a prima facie basis, whether there is any merit in the complaints in order to decide whether there is any strength in the argument that the Official Solicitor has an interest adverse to E. In fact, I am in the best position to make this analysis, having had conduct of the case for most of the period during which the events have occurred which are said to give rise to complaints.

I therefore quote in full the particulars of the complaints set out by Miss Bretherton in para. 30 of her position statement:

If the order of Ryder J did authorise lawful detention [at the hearing on 8 December 2009 – see my earlier judgment of 26 March 2010 at paras 47 and 92-96] (which is not admitted, this being one issue on which leading counsel has advised an application to the Supreme Court should be made) it was the Official Solicitor which removed E’s claim for damages by consenting to that order (if consent order it was, which is not accepted for the reasons previously given). Accordingly if E cannot claim damages for this period he has a cause of action in negligence against the Official Solicitor.

Alternatively, the Official Solicitor agreed to E for whom they acted, being detained at an organisation which was in breach of the Care Standards Act 2000 and so were negligent in failing to satisfy themselves that E was detained in an organisation which was authorised to detain. It was G who had to point out the “tenancy” was invalid.

The Official Solicitor failed to secure proper contact for E. There were problems and delays even after the various court orders directing contact…

The Official Solicitor have [sic] failed to protect E’s money [i.e. during his stay at Z Road in the care of X Limited]… Accordingly it will be necessary to seek to claim monies back from X Limited.

The Official Solicitor have [sic] failed to protect E’s possessions [some of which, it is alleged, have not been returned by X Limited or returned in a poor condition].

The Official Solicitor failed to ensure that E was properly cared for [i.e. by X Limited].

The Official Solicitor have [sic] failed to raise the issue of [a] serious case review, a matter repeatedly raised by G.”

In my judgment, these complaints are without foundation. On the matters raised in subparagraphs (1) to (3) above, I consider that the Official Solicitor has acted with commendable professionalism and diligence in representing E on the main issue at the first hearing before me - whether he should return to F’s care. The suggestion that any claim against the Official Solicitor might arise from the circumstances leading to Ryder J’s order is, in my view, untenable, bearing in mind the terms of that order and the circumstances in which the hearing took place. The Official Solicitor subsequently carried out a very thorough analysis of whether a return home was in E’s best interests and indeed argued in favour of a return home at the first substantive hearing, before me in January – March 2010. So far as the complaint in sub-paragraph (4) is concerned, Miss Street made the obvious point that it was the court that ordered at the end of that hearing that E should continue to reside at Z Road for the time being. Miss Street concedes that it was G’s legal representatives who identified the argument that E’s “tenancy” at Z Road was unlawful, but points out that the Official Solicitor included that concern in the schedule of reasons why E should not remain at Z Road in the interim but rather should be returned immediately to F’s home. Miss Street submits that it is not the fault of the Official Solicitor that the court ultimately took a different view at that hearing. I accept that submission. As to the point made in sub-paragraph (5) in Miss Bretherton’s list of complaints, Miss Street points to evidence that the Official Solicitor responded to concerns raised by G about contact. I am satisfied that the Official Solicitor did indeed take the steps identified by Miss Street, but even if he had not done so that would not have given rise to any potential legal claim against him by E. So far as points made in subparagraphs (6) and (7) above are concerned, I agree with Miss Street’s submission that it was not the Official Solicitor’s function as litigation friend to scrutinise X Ltd’s conduct in respect of E’s money or possessions, and there is nothing about the Official Solicitor’s conduct in relation to these matters that could possibly give rise to any complaint or claim. So far as the point made in sub-paragraph (8) is concerned, Miss Street reminds me that the criticism of X Ltd’s care of E was a matter that the Official Solicitor put in the balance in favour of an immediate return home to F. She adds, however, that the court found that the quality of care provided by X Ltd was generally positive (see my earlier judgment at paragraph 150). I do not see how any claim against the Official Solicitor could arise as a result of that matter. Equally, I fail to see how any failure by the Official Solicitor to press for a serious case review could possibly give rise to any complaint or action against him, given the purpose and scope of such reviews.

Therefore my first conclusion on the litigation friend issue in this case is to reject the complaints made by those representing G about the Official Solicitor’s conduct of the case. I regard them as without foundation. I accept all of Miss Street’s points in reply to the various criticisms made by Miss Bretherton. I take the view that the Official Solicitor has played an invaluable role in these proceedings, bringing his great expertise to bear in representing E and assisting the court in the exceedingly difficult issues that have arisen. One example of this was the exemplary risk analysis provided by Miss Street at the conclusion of the first hearing. The fact that, ultimately, I reached a different conclusion from that advanced by the Official Solicitor (and made an order that E should not return home at that stage) was emphatically not something for which the Official Solicitor could in any sense be blamed.

Secondly, I accept the submission made by Miss Street that there is cause to question whether G has the necessary objectivity to act as litigation friend on behalf of her brother. It is not uncommon for family members to have strong feelings about the misfortunes that befall their relatives. Indeed, it is entirely understandable. But there is a danger, in some cases, that such feelings may cloud judgment. That G has strong feelings is manifestly clear from much of what has been said by her and on her behalf in these proceedings. There is, I fear, a risk that her feelings may prevent her bringing to bear the objectivity required of a litigation friend. I repeat, for the umpteenth time, I have very great respect for G’s care, devotion and commitment to her brother, but the fact remains that G has been drawn into the dispute with Manchester City Council and has to a considerable extent made common cause with F who was in very serious dispute with the local authority. I sympathise with G’s strong feelings about the way E has been treated, but I share the Official Solicitor’s concerns that those feelings would be a disadvantage to someone acting as E’s litigation friend. In addition, I regard the unwarranted criticisms which have been levelled at the Official Solicitor as further evidence of a potential lack of objectivity.

Thirdly, even if I was satisfied that G was capable of bringing the requisite degree of objectivity required for the fair and competent conduct of proceedings on behalf of E, I reject Miss Bretherton’s argument that that fact would be determinative of the issue. The Official Solicitor is emphatically not a litigation friend of last resort. I remind myself again of the terms of rule 143:

Miss Bretherton’s argument that the Official Solicitor will be acting ultra vires where there was a family member qualified to act as litigation friend within the meaning of rule 140(1) is, to my mind, simply wrong. As pointed out in the note to rule 140 in 2010 Court of Protection Practice, at page 717, the Official Solicitor will usually be appointed to act in respect of persons who lack capacity in the Court of Protection. There are very good policy reasons for this practice. The Official Solicitor will invariably have the objectivity required to act as litigation friend which, for understandable reasons, family members sometimes lack. Furthermore, the Official Solicitor has unrivalled expertise in this field and it will manifestly be in the best interests of incapacitated adults for this expertise to be employed on their behalf, particularly in complex cases such as this.

Furthermore, these proceedings are not yet concluded. Potentially, difficult issues may arise in future concerning damages, costs and possibly other issues. In my view, it is essential that the Official Solicitor continues to act as litigation friend in this case, certainly at this stage.

I therefore dismiss the applications for the appointment of deputies and for the replacement of the Official Solicitor as E’s litigation friend. There remain outstanding issues about damages and costs which I have adjourned to a date to be fixed in the Michaelmas term. There have, I understand, been some developments in the intervening weeks since the conclusion of the hearing in July, and I therefore direct that the matter be listed for a short hearing (30 minutes) for further directions before me on the first available date after 1^st October that is convenient to counsel. That hearing can, if necessary, be conducted by telephone or video link, and may be at 10 am or 4.30 pm, at counsel’s convenience. I would be grateful if Mr Mackley and his clerk would identify a suitable date and make the necessary arrangements with my clerk.

There is, however, one final order I make at this stage (to be inserted in the order which I would be grateful if Mr. Mackley could draft). That is to confirm that E shall hereafter reside with F. Hitherto, the orders I have made as to his residence have been interim orders under s.48. I now make a “final” order under s.16. Although I have rejected legal arguments advanced on behalf of F and G, I am entirely satisfied, on the evidence put before me, that E should, in his best interests, reside with F, and accordingly I make an order under s.16 to that effect. I am equally satisfied that it is in E’s best interests to have regular contact with his beloved and devoted sister G, but since that is an issue which can be arranged informally and collaboratively, as anticipated by the MCA and the Code of Practice, it is unnecessary for any order to be made about it.