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IN THE COURT OF PROTECTION
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Case No. 1144388/03 |
Sitting at:
First Avenue House
42-49 High Holborn, WC1
Before:
HIS HONOUR JUDGE TURNER QC
(Sitting as a Judge of the High Court)
(In private)
B E T W E E N :
LONDON BOROUGH OF HAVERING Applicant
- and -
(1) LD
(2) KD Respondents
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MR. M. HORTON (instructed by the Legal Services Department) appeared on behalf of the Applicant.
MISS J. RICHARDS (instructed by Irwin Mitchell LLP) appeared on behalf of the First Respondent.
MR. A. NORTON (instructed by Maxwell Gillott) appeared on behalf of the Second Respondent.
J U D G M E N T
JUDGE TURNER QC:
THE ISSUE
The issue in this case is the deceptively straightforward one of whether or not the local authority, the London Borough of Havering, should, in the person of its director of Adult Social Care, be appointed, pursuant to the Mental Capacity Act 2005, s.16(2)(b), the personal welfare deputy for a man of 22, LD, who has profound difficulties and lacks capacity to make decisions about important aspects of his life. The application is opposed by the Official Solicitor, who acts as litigation friend not only for LD but also for his mother KD, 42, who, by reason of mental ill health, also lacks capacity. KD has a persistent delusional disorder, or paranoid schizophrenia.
The local authority seeks appointment as LD’s deputy, in the words of a draft order sought, to “make decisions on his behalf in respect of all matters concerning his personal welfare, subject to the restrictions set out in Mental Capacity Act 2005”. It is suggested the appointment should last until further order. In short, the local authority, envisaging a need for continuing decision-making concerning LD and foreseeing probable continuing conflict with KD, submits that appointment as a personal welfare deputy will be in LD’s interests and will provide the best framework for future decision-making, thus avoiding probable further litigation or court application and, in addition, unnecessary reliance by those dealing with day to day matters arising in respect of LD’s care upon the protection afforded by Mental Capacity Act 2005, s.5.
The local authority recognises that at the core of the decision to be taken is the view the court takes of the Mental Capacity Act 2005, s.16(4). That subsection provides:
“When deciding whether it is in P’s best interest to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that –
“(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision; and
“(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.”
I am told by counsel that there are, as yet, no reported cases considering this subsection.
THE BACKGROUND
LD is 22. He has athetoid cerebral palsy, spastic quadriplegia and global developmental delay. He requires total assistance with all aspects of his personal care and daily living. He is an essential wheelchair user. He also has moderate to severe oropharyngeal dysphagia, which means he is at risk of choking if not fed with appropriate foods in the correct way. His psychiatrist has indicated that he has severe to profound mental retardation. As such, he lacks capacity to make decisions, and it is highly unlikely that he will ever acquire such capacity.
Social services have been significantly involved in his life and care since at least 1997. He lived with KD, his mother, throughout his school days and until 16 th January 2009. Extensive support was provided with respite at [Z] Lodge in Chigwell. His mother was the subject of a mental health assessment in 2000 and was later in hospital herself for some eight months in 2005/2006. Concern about LD increased during 2007/2008 and there were reported incidents of anti-social behaviour to which police were called. There was increasing anxiety about KD’s capacity to look after LD. Following a home attendance by the police on 16 th January 2009, LD was admitted, with KD’s agreement, to a nursing home called [X] Court, initially on an interim basis. In fact, he was to remain there until 25 th May 2010 when, with court approval and following a planned programme of introduction, he moved to [Y] Lodge, a 10 bedded residential unit where he has apparently settled well. It was considered that while [X] Court had provided very good nursing care it had not afforded optimal social care or social inclusion. It seems likely LD will remain in [Y] Lodge for the foreseeable future. By a consent order of 13 th April 2010, I directed a court review of that placement to take place in October 2010.
There is no doubt that KD, as his mother, is a figure of considerable importance to LD. The court has on several occasions recorded that it is in LD’s best interests for him to have regular contact with KD. That said, it is equally clear that she has needed much support herself, a proactive and creative approach by professionals seeking to engage her, and that she was frequently in conflict with those seeking to help LD. Her own difficulties and the nature of her mental illness, combined at times with a lack of realism about LD’s needs, meant frequent conflict and disagreement between her and LD’s carers, with issues about his care, welfare and safety not always readily being resolved.
THE PROCEEDINGS
The local authority sought permission to issue proceedings because of safety and welfare concerns on 16 th January 2009 and issued the present application to be appointed welfare deputy on 21 st January 2009. Directions were given and on 9 th April 2009, at a short hearing expected by the parties to be interlocutory, District Judge Jackson purported summarily to make orders intended to dispose of all welfare issues in the case. She granted the local authority application to be appointed a personal welfare deputy. That hearing was plainly flawed and, in the circumstances, unfair. LD and KD appealed successfully and on 14 th August 2009 His Honour Judge Horowitz QC allowed the appeal and set aside the earlier orders. He transferred the matter to the High Court and gave further directions, including for the eventual determination of the present issue.
His judgment is helpfully reported as KD and LD v Havering LBC [2010] 1 FLR 1393. At paragraphs [38] and [39] of the judgment His Honour Judge Horowitz adverted to the present issue and made reference to s.16(4) and the guidance in the Code of Practice at paragraphs 8.38 and 8.39, suggesting that deputies for personal welfare decisions will only be required in the most difficult cases. There had plainly been no developed consideration of the statutory or procedural requirements or of the necessary factors for such a significant decision at the brief hearing before the learned district judge.
THE LEGAL FRAMEWORK
9 The court’s starting point is to be found in s.1 of the 2005 Act. By s.1(5):
“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”
It follows that the court can only appoint a personal welfare deputy if such an appointment is in LD’s best interests. Section 16(3) provides:
“The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).”
By s.1(6), before any decision is made:
“… regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”
This has been termed the “less restrictive option”. The “best interests” principle takes priority - that is to say, the option which is in the person’s best interests must be chosen - which may not necessarily be the least restrictive alternative.
10 By s.4, a checklist of factors to be considered in relation to a “best interests” determination is set out. By s.16(4), the court must have regard to these matters in any decision to appoint a welfare deputy. Section 4(6)(b) requires consideration, “so far as is reasonably ascertainable”, of “the beliefs and values that would be likely to influence his [LD’s] decision if he had capacity” and, by s.4(6)(c), “the other factors that he would be likely to consider if he were able to do so”. Section 4(7)(b) ensures that the views of persons, such as KD, “interested in” LD’s welfare are to be taken into account and they are, if “practicable and appropriate”, to be consulted. Section 5 of the Act protects a person who “does an act in connection with the care or treatment of another person”, provided that reasonable steps are taken to establish whether that person lacks capacity and whether, when doing the act in question, the doer reasonably believes it will be in the individual’s best interests for the act to be done. In the present case, the Official Solicitor has stressed the availability of s.5 action to embrace many, even most, issues arising on a day to day basis in connection with LD’s care.
Section 16 grants power to appoint deputies. I have already made reference to s.16(3) and s.16(4). By s.16(5):
“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 subsection (2).”
Section 17 clarifies particular powers granted under s.16, though these are all subject to s.20 which identifies a range of decisions the court cannot delegate to deputies and imposes restrictions on the exercise of a deputy’s powers. By s.20(2)(a), for example, a deputy cannot “prohibit a named person from having contact with P”. Similarly, by s.20(7), “A deputy may not do an act that is intended to restrain P unless four conditions [set out in s.20(8) to (11)] are satisfied”. Counsel for the Official Solicitor submitted that a number of medical interventions in LD’s case might potentially necessitate just such an element of restraint.
Section 19(2) enables the court to appoint as a deputy “an individual by appointing the holder for the time being of a specified office or position”. Plainly, this would embrace the local authority’s director of Adult Social Care. Section 19(9)(b) enables the court to require a deputy to submit to the Public Guardian such reports at such times or such intervals as the court may direct.
Section 35 provides for the appointment of an independent mental capacity advocate to be available for the purposes of s.37 (serious medical treatment), s.38 (provision of accommodation by an NHS body) or s.39 (provision of accommodation by the local authority). However, s.40(1)(c) provides these various duties do not arise where a deputy is appointed by the court, with power to make decisions in relation to those matters. Mr. Horton, counsel for the local authority, suggested that, if the court considered it a necessary safeguard, the appointment of the local authority could be made on terms that, for example, s.39 did apply, notwithstanding s.40(1)(c).
By s.42, the Lord Chancellor must prepare and issue a code of practice to provide guidance for persons carrying out functions and powers under the Act. By s.42(4)(c), the code is directed, inter alia , to deputies appointed by the court. By s.42(5), the court will, in proceedings, take into account any provision of the code or failure of compliance. I have no doubt a court will be expected to pay careful attention to the code and to give careful reasons in any case where there is apparent departure from it.
Finally, by s.58(1), the functions of the Public Guardian include (c), “supervising deputies appointed by the court”; (d), “directing a Court of Protection Visitor to visit … a deputy appointed by the court”; and (f), “receiving reports from … deputies appointed by the court”.
THE LEGISLATIVE BACKGROUND
17 In his skeleton argument Mr. Horton helpfully traced the genesis of the power to appoint welfare deputies, introduced for the first time in the 2005 Act, and, in particular, the provisions now enshrined in s.16(4). He made reference to the Law Commission Consultation Paper (1991) No. 119 (Mentally Incapacitated Adults and Decision-Making: An Overview). That was followed in 1993 by Consultation Paper No. 128 (Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction). At paragraph 6.8 of the latter report the Commission stated:
“We have already proposed that there should be power either to resolve a particular issue or to appoint someone to manage the personal care and welfare of the incapacitated person. In accordance with the principle of ‘least restrictive option’, we have also proposed that the judicial authority seek first to deal with the specific issue before it. The appointment of a continuing ‘personal manager’ [now a ‘welfare deputy’] should be a secondary option.”
At paragraphs 6.13 and 6.19 the Commission provisionally recommended:
“If the judicial authority finds that a personal order will not be sufficient to benefit the incapacitated person, it may appoint a continuing personal manager for that person. The manager will have such powers in relation to that person’s care and welfare, as are specified in the order making the appointment … the judicial authority may appoint the director of social services for the appropriate local authority as personal manager if there is no other suitable candidate.”
At paragraph 6.22 the Commission provisionally recommended that such orders be of limited duration. Having proposed that financial managers be appointed for only 6 or 12 months, it made the same recommendation in relation to personal managers in the interests of consistency. Although it welcomed comments on that issue, “it may be that the maximum life of a personal order could be rather longer, given the range of alternate ways of providing for financial management and the types of long-term incapacity, for which personal appointments might be appropriate”.
18 In 1995, the Law Commission produced its report No. 231 (Mental Incapacity). Part VIII of the report dealt with decision-making by the court. Paragraph 8.12 stated:
“We suggested in our consultation papers that continuing powers of management over another person should only be granted where the issue in the case cannot be resolved by a ‘one-off’ order. A number of respondents pointed out that where money is concerned the need for an ongoing authority will often be made out. Similar considerations may also apply if a person has a progressive illness, which will involve a series of medical decisions being made over a period of time. Nevertheless, the important general principle that a single issue order is preferable to a management appointment was widely supported on consultation.”
Paragraph 8.13 said:
“We also suggested in the consultation papers that any management powers should be as limited as possible. There is a worldwide trend towards ‘partial guardianship’, in acknowledgement of the fact that many disabled people living in the community have capacity to take many day to day decisions and only need help and protection in relation to a limited range of matters. Again, we accept the arguments of those respondents who pointed out that extended powers will sometimes still be needed. We see merit, however, in setting down the general principle which we suggested on consultation and which was warmly supported by our consultees. We recommend that the powers conferred on a manager should be as limited in scope and duration as possible.”
Clause 24(2) of a draft Bill was substantially identical to s.16(4) of the 2005 Act.
In December 1997, the Lord Chancellor’s Department launched a further round of consultation which led to its proposals being published in Making Decisions in October 1999. The issue of personal welfare deputies had been accepted by the government in 1997 and had not featured in the further round of consultation. In June 2003, the government published its draft Mental Incapacity Bill. Clause 16(4) of that draft Bill was identical to the current s.16(4). A joint committee of both houses of Parliament heard extensive evidence from interested parties and published its response in November 2003. At paragraphs 163/164 of its report the committee commented on the draft Bill. Paragraph 163 stated:
“The court will have the power to make declarations as to an individual’s capacity, as to whether a particular act or omission taken in relation to the individual is lawful and to give directions to deputies. In cases where there is no need for ongoing decision-making powers the court will be able to make a single order, enabling a particular matter to be resolved. Such orders can include relatively straightforward decisions (such as the sale of property), as well as major or difficult decisions (including some medical treatment decisions) or resolving disputes where people cannot agree (e.g. where an incapacitated person should live or who he/she should have contact with). In deciding whether to grant permission for an application to be made for court intervention the court has to be satisfied that a court order or directions will benefit the person lacking capacity and it is not possible to resolve the matter without going to court. Clause 16(3) of the draft Bill provides that the powers of the court to make decisions and to appoint deputies will be subject to the best interests checklist in clause 4.”
Paragraph 164 stated:
“The committee is concerned that the draft Bill fails to give adequate guidance to the court to determine when it will be in an individual’s best interests to appoint a deputy. We recommend that further guidance should be provided to assist the Court of Protection in deciding when a single order is more appropriate than the appointment of a deputy.”
THE CODE OF PRACTICE
21 Chapter 6 deals with the protection afforded by s.5 of the Act for people providing care or treatment to a person lacking capacity. Paragraph 6.2 speaks of “protection from liability”. Paragraph 6.5 lists an extensive selection of personal care, health care and treatment issues contemplated as covered by s.5 of the Act. Paragraphs 6.8 and following refer to change of residence. Paragraphs 6.12 contemplates disagreement necessitating an application to court. Paragraph 6.15 and following refer to health care and treatment decisions. Paragraph 6.18 contemplates court involvement in some decisions so serious the court must decide. Paragraph 6.21 provides:
“At any time, it is likely that several people will be carrying out tasks that are covered by section 5 of the Act. Section 5 does not:
“give one person more rights than another to carry out tasks
“specify who has the authority to act in a specific instance
“allow somebody to make decisions related to subjects other than the care or treatment of the person who lacks capacity, or
“allow somebody to give consent on behalf of a person who lacks capacity to do so.”
22 Chapter 8 addresses the role of the Court of Protection and court appointed deputies. Paragraph 8.3 makes reference to the core principles of the Act and contemplates that “in most cases concerning personal welfare matters” these will be enough to:
“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.”
Paragraph 8.25 makes reference to the court appointing a deputy “to make future decisions” if “there is a need for ongoing decision-making powers”. Paragraph 8.26 reiterates the provisions of s.16(4) of the Act and states:
“In deciding what type of order to make the court must apply the Act’s principles and the best interests checklist. In addition, it must follow two further principles, intended to make any intervention as limited as possible:
“Where possible, the court should make the decision itself in preference to appointing a deputy.
“If a deputy needs to be appointed, their appointment should be as limited in scope and for as short a time as possible.”
Paragraph 8.31 begins the Code’s detailed discussion of the appointment of deputies in these terms:
“Sometimes it is not practical or appropriate for the court to make a single declaration or decision. In such cases, if the court thinks that somebody needs to make future or ongoing decisions for someone whose condition makes it likely they will lack capacity to make some further decisions in the future, it can appoint a deputy to act for and make decisions for that person. A deputy’s authority should be as limited in scope and duration as possible (see paragraphs 8.35-8.39 below).”
Paragraph 8.33 suggests:
“In the majority of cases, the deputy is likely to be a family member or someone who knows the person well. But in some cases the court may decide to appoint a deputy who is independent of the family (for example, where the person’s affairs or care needs are particularly complicated). This could be, for example, the Director of Adult Social Services in the relevant local authority (but see paragraph 8.60 below) or a professional deputy. The OPG has a panel of professional deputies (mainly solicitors who specialise in this area of law) who may be appointed to deal with property and affairs if the court decides that would be in the person’s best interests.”
Paragraph 8.34 provides:
“Whether a person who lacks capacity to make specific decisions needs a deputy will depend on:
“the individual circumstances of the person concerned
“whether future or ongoing decisions are likely to be necessary, and
“whether the appointment is for decisions about property and affairs or personal welfare.”
Perhaps, most relevantly to the present issues, paragraphs 8.38 and 8.39 specifically address personal welfare deputies. Paragraph 8.38 provides:
“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.”
Paragraph 8.39 continues:
“Examples include when:
“somebody 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, somebody (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 from having contact with the person.”
Paragraph 8.60 cautions against the risk of possible conflict of interest in these terms:
“Sometimes the court will consider appointing the Director of Adult Services in England or Director of Social Services in Wales of the relevant local authority as a deputy. The court will need to be satisfied that the authority has arrangements to avoid possible conflicts of interest. For example where the person for whom a financial deputy is required receives community care services from the local authority, the court will wish to be satisfied that decisions about the person’s finances will be made in the best interests of that person, regardless of any implications for the services provided.”
Finally, paragraph 8.61 is a reminder that a deputy may seek professional or expert advice but cannot give their decision-making responsibilities to someone else.
THE LOCAL AUTHORITY EVIDENCE
23 This hearing was, by agreement, dealt with entirely on submissions. I heard no oral evidence. I read much of two substantial binders of papers and was greatly assisted by detailed and helpful skeleton arguments from all counsel. The local authority evidence is to be found principally in the witness statement dated 16 th March 2009 of Jacqueline Lawson, who was at the time the social work senior practitioner with direct management responsibility for LD, and in the later statement dated 21 st August 2009 of Lurleen Trumpet, LD’s allocated care manager from January 2006 to September 2008. Miss Lawson said this:
“LD will require someone to be appointed to make welfare decisions for him. Due to his physical and learning disability, there are occasions when the decisions regarding whether he should have a medical procedure/intervention will arise. KD has often not recognised the importance of these recommendations in the past and has declined them. Examples include her failure to take LD to his GP (e.g. before 16 th January PCSO Cull reports that LD had a sore eye for a period of days with no apparent attention from a GP) or to attend appointments with the dietician. She has also demonstrated a lack of appreciation of what is in LD’s best interests by failure to adhere to advice from the various professionals involved in seeking to protect LD. It is likely that LD may require further investigation if his swallowing difficulties increase. His teeth and gums also need to be assessed and it is possible that consent will be required for him to have an anaesthetic. It is my view that the local authority will need to take responsibility for welfare decisions.”
24 Miss Trumpet, in her statement, said this:
“The local authority has considered the alternative that the court could make declarations to deal with the current presenting issues. However, the local authority thinks that a deputyship is more appropriate for the following reasons:
“5.1 The likely ongoing nature of the potential disputes over LD’s care and treatment, especially over medical issues. I am not aware of LD’s life expectancy but assume that he may live to old age. He is currently only 21 and therefore he could live for another 40 years. His multiple and complex needs are likely to involve further treatment and management, the nature of which cannot be predicted with any certainty at present. Certainly, the most prominent issue is LD’s feeding. The mother maintains that LD does not have a feeding problem and rejects the advice of professionals. The pattern of the mother’s disagreement over treatment is well documented historically and is likely to continue into the foreseeable future.
“5.2 It would not be appropriate for the local authority to continually revert to the court to resolve disputes over miscellaneous care and treatment issues.
“5.3 There is a history of disputes between the mother and the local authority and she has failed to co-operate or engage with the local authority on numerous occasions. Currently, she does not appear to wish to liaise with Jacqui Lawson. Whilst she is able to be agreeable and be co-operative for limited periods, this usually comes to an end once she is challenged over a particular issue.
“5.4 LD would be at risk of serious harm if he were to live with his mother. This is well documented in the previous statements filed within these proceedings, and I do not intend to repeat those here.
“5.5 Contact issues may become problematic in the future. Currently, the mother has not attended [X] Court to see LD for over a month. The local authority support the mother having contact with LD, although this must be subject to reasonable restrictions. If the mother were co-operative, then it would be possible to enable the mother to have a substantial amount of contact without supervision. However, the mother has demonstrated in the short time that she has enjoyed contact at [X] Court that she has become involved in disputes over LD’s feeding. She attempted to persuade LD not to have contact with social workers and has breached the rules of the unit, e.g. inappropriate dress and entering other residents’ bedrooms. It may be possible for the court to make a declaration which would cover all eventualities in respect of contact. However, it is the local authority’s view that it would be better to allow the local authority to have discretion over contact with LD to ensure that this is a positive experience for him.”
THE EXPERT EVIDENCE
25 Two independent social workers instructed in this matter, Mr. James O’Meara and Mr. Jonathan Watkins, who have produced a number of full, careful and impressive reports between October 2009 and February 2010, were jointly instructed on 24 th November 2009 to consider a number of questions, including whether, on the assumptions that final orders would have been made regarding LD’s best interests in relation to his residence, care and contact, they considered that there was a need for a personal welfare deputy to be appointed.
26 In their joint report dated 7 th January 2010 Mr. O’Meara and Mr. Watkins formed the view that there was a need for a personal welfare deputy to be appointed and made specific reference to paragraph 8.39 of the Code of Practice (relating to a scenario whereby P was at risk of serious harm if left in the care of family members) and their opinion that LD was at risk of serious harm through KD’s dangerous feeding practices.
27 A further letter of instruction was sent to Mr. O’Meara and Mr. Watkins dated 29 th January 2010, in which the Official Solicitor queried whether, in the light of the likely order from the court that LD live in accommodation identified by the London Borough of Havering and that a “contract” be entered into with KD to include the appropriate method of feeding LD, they continued to advocate that the local authority be appointed as LD’s personal welfare deputy. Mr. O’Meara and Mr. Watkins were also asked, if they did consider there to be a need for a personal welfare deputy, whether the deputyship should be unlimited or whether it should be restricted to decisions regarding particular circumstances, such as in the event of a medical emergency.
28 In their second joint report dated 5 th February 2010 Mr. O’Meara and Mr. Watkins responded as follows:
“We are both agreed that even if the court should order that our recommendation relating to the entering of a contract by KD in relation to the appropriate feeding of LD be stipulated we would still be of the view that a health and welfare deputy should be appointed. Our reasons for holding this view are because (a) LD’s complex disabilities will sadly be lifelong; (b) the volatile, paranoid nature and chronic pattern of KD’s psychiatric illness makes it necessary to provide a stable, reliable and consistent decision-making framework to safeguard LD’s interests.
“We both agree that the scope of the health and welfare deputy should extend to duties relating LD’s finances, the giving or withholding of consent to medical treatment and/or social care interventions. We are also both agreed that the duration of the tenure of deputyship should be indefinite. In the event of there being a significant, sustained and medically verifiable improvement in KD’s mental health at some future date we would be supportive of the issue of such deputyship being open to a review by the court. We are unaware of any alternatives to the local authority that could be considered to fulfil the role of health and welfare deputy for LD. We believe that the local authority, as a publically accountable body, would satisfactorily fulfil this role.”
THE LOCAL AUTHORITY CASE
29 Making reference to what he termed (borrowing a phrase from Donald Rumsfeld) the “known unknowns”, Mr. Horton, for the local authority, said this in his skeleton argument:
“The applicant has no better crystal ball than any other person. However, the evidence in this case establishes at least four possible future issues: (1) possible change to LD’s feeding regime and consequent need for surgery, (2) possible change in placement, (3) possible dental or other medical treatment, (4) likely need to regulate LD’s contact with KD.”
He developed careful submissions, demonstrating how difficulties had arisen in the past in each of these areas and how future issues could reasonably be foreseen under each heading. He urged, in reliance upon the social work experts’ views, the creation, by the appointment of the local authority, of a stable, reliable and consistent decision-making framework to safeguard LD’s best interests. He argued that, on the facts of this case, the s.5 shield was an insufficiently secure or satisfactory basis on which to expect professionals to proceed, given past evidence of KD’s threat to report carers to police (November 2006) or to “take criminal proceedings” against a speech therapist (November 2008).
30 KD was said, in a review report of July 2009, to have briefly interfered with LD’s feeding regime and had apparently indicated to the independent social worker, Mr. Watkins, that she would not take any professional advice on the feeding issue. Miss Trumpet, in her July 2008 statement, had spoken of KD’s “persistent negative beliefs regarding professionals’ recommendations or suggestions” and her then conclusions that KD “will not engage in any care plan for any length of time”. Dr. A, KD’s psychiatrist, was of the opinion in May 2009 that she was “very deluded and has been so for many years. Her delusions are persistent and resistant to treatment”.
31 Mr. Horton urged that, in the circumstances, LD’s welfare and best interests pointed strongly in the direction of a local authority deputy. That would avoid future delay in decision-making, establish a clear and satisfactory regime for LD’s care and management and avoid unnecessary litigation or court hearings. He argued this was precisely the sort of situation contemplated by paragraph 8.39 of the Code of Practice. He urged me to take the view that the reference in paragraph 8.38 of the code to the appointment of welfare deputies being reserved for the “most difficult cases” was something of a gloss on the statute and went rather further than the wording of s.16(4).
THE OFFICIAL SOLICITOR’S EVIDENCE
The Official Solicitor has filed a lengthy and careful statement in opposition to the present application. It has not been possible, given the profound nature of LD’s disabilities, to ascertain his views and wishes regarding the application. Similarly, KD lacks capacity and the application is formally resisted, on her behalf, by the Official Solicitor also. The Official Solicitor addressed each of the four matters principally relied on by the local authority.
As to LD’s feeding regime, LD is now settled at [Y] Lodge. Care is provided by staff there. There is no suggestion he will return to his mother’s home or care at any point in the near future. Historic concerns about her role in feeding are now precisely that and cannot be used to justify the appointment of a welfare deputy. The reality is future feeding decisions will be a matter essentially for health professionals. The director of Adult Social Care is unlikely to have any independent expertise or judgment in that realm. Further, were at some point in the future surgical intervention by way, for example, of the insertion of a percutaneous endoscopic gastrostomy (PEG) tube to be required, the Official Solicitor, who has some professional experience of these issues, considers that such a decision would be likely to require the most careful consideration by relevant medical practitioners with appropriate multi-disciplinary input. The protections and restrictions of sections 5 and 6 of the Act will, the Official Solicitor argues, no doubt apply and, should a genuine dispute arise, that important medical decision should pre-eminently be a matter for determination by a court, rather than a representative of the local authority.
As to choice of placement, the Official Solicitor points out that the court process has recently and satisfactorily resolved that particular matter and it is to be hoped that LD may remain where he is for some time. The court is to review this aspect in October 2010. The possible need for a further decision on the point of residence does not, the Official Solicitor argues, warrant the unlimited deputyship which is sought.
A recent and, to some extent, muddled issue in respect of dental treatment, the detail of which is now secondary, is prayed in aid by both sides in support of their respective contentions. The local authority argued that the dentist in question had unsatisfactorily felt unable or unwilling to proceed with treatment. A local authority deputy could have given necessary consent. The Official Solicitor responded by pointing out that subsequent professional reflection confirmed the treatment was in fact not even required at that point. Even if dental treatment were required in the future, the Official Solicitor argued that the s.5 safeguards were sufficient and that, in reality, LD was in no different a position to many other adults who may lack capacity to consent to what could be described as relatively routine medical treatment.
Finally, in relation to contact, the Official Solicitor considered that the local authority had yet to seek to agree a contact schedule with KD, despite acceptance by the court that it was in LD’s best interests for contact to occur. Regrettably, it seemed KD had yet to visit LD in [Y] Lodge. The Official Solicitor was very aware of the potential for difficulty in relation to any “prohibition” of contact, arising under s.20(2)(a) of the Act, and considered that a general authorisation of the local authority to regulate contact may in fact prove counter-productive, heighten KD’s feelings of exclusion and ultimately decrease the chances of a satisfactory re-establishment of contact between mother and son.
THE OFFICIAL SOLICITOR’S CASE
37 Miss Richards, counsel for the Official Solicitor representing LD, stressed, on the Official Solicitor’s behalf, the wealth of experience the Official Solicitor brings to consideration of a proper approach in respect of the appointment of welfare deputies. To date, fewer than 200 appointments of personal welfare deputies have apparently been registered at the Office of the Public Guardian.
38 Interestingly, around the time of the present hearing in June 2010, the 2009 report of the Court of Protection was published. The section headed “Personal Welfare applications” on pages 11/12 warrants quotation in full:
“Initial estimates were that the court would receive approximately 2,000 applications per year relating to its personal welfare jurisdiction and three quarters would be serious decisions heard at the High Court. It was also thought that the court would appoint approximately 500 personal welfare deputies per year.
“The volumes of personal welfare applications have been far fewer than expected. Indeed, in the first six months, the court received only 229 applications.
“The Mental Capacity Act 2005 and the supporting Code of Practice both emphasise that personal welfare applications should only be made as a last resort. Section 50 of the Act imposes a general requirement for the applicant to seek the permission of the court before making an application and permission is almost always required for personal welfare applications. The intention is to ensure that personal welfare applications are made in the best interests of the person and this is reinforced in the Code of Practice, which provides that ‘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 personal welfare decisions.’
“From the second quarter onwards, the number of applications for personal welfare powers and in particular ‘hybrid’ applications, for an order relating to both personal welfare and property and affairs, increased. From January 2008 to December 2009, the court received 2,695 personal welfare applications but made only 517 orders … Of these, only 195 appointed a deputy for personal welfare. This means that few applications meet the criteria set out in the Code of Practice, and the court is refusing permission in up to 80% of personal welfare applications.”
Miss Richards argued that that essentially cautious approach was correct in law and represented good practice. She said, in short, the present case was not, in the Official Solicitor’s experience, an unusual or exceptional one. It gave rise to precisely the kinds of issues and difficulties the Official Solicitor experienced in many, if not most, of the welfare cases in which he acted as litigation friend to an incapacitated person. It was a very typical case in the Official Solicitor’s submission. Family members not acting in a patient’s best interests was not an unusual situation, especially where they themselves had mental health or other difficulties. None of the issues of concern to which the local authority pointed in this case warranted the wholesale delegation to the local authority which was sought. The evidence, it was submitted, should wholly fail to persuade me it was at this point in LD’s best interests to permit the local authority to take all permitted decisions, without court scrutiny or the further involvement of the Official Solicitor on LD’s behalf.
39 Miss Richards also submitted the following:
for a substantial majority of incapacitated individuals s.5 and the Code of Practice will more than adequately cover the bulk of welfare and health care decisions which need to be taken day to day;
the director of Adult Social Care, however committed a professional, was not analogous to a family member who knew the incapacitated person well and would very likely have a long-standing relationship with them. Decision-making by the deputy could not be delegated to others. In the context of welfare deputyship, personal knowledge and involvement were likely to be significant. In this case the local authority had filed no evidence indicating how such deputyship would be operated in practice where changing staff seemed virtually inevitable;
recognising as she did that a family member appointed as a deputy may very well experience conflicts of interest, the position was in principle potentially more acute for a local authority official. Paragraph 8.60 of the code gave an example of the possibility of conflict where a person for whom a financial deputy is required received community care services from the local authority. The Official Solicitor had concern (not related in the slightest to any criticism of this local authority) that similar conflict may arise in the case of a welfare deputy. That deputy must take decisions only in the best interests of the incapacitated person. The director of Adult Social Care may well find him or herself in a sensitive and difficult position in considering conflicting calls on scarce resources;
the independent social work experts, in making reference to a “stable, reliable and consistent decision-making framework” had in fact paid insufficient attention to the wider scheme of the 2005 Act and the role of the Court of Protection in being available to settle more serious disputes. Section 5, the code, common law and indeed the statutory framework of community care legislation itself all combined to afford precisely the framework the experts advocated for the provision of services and decision-making in this case;
Whilst very reluctant indeed to criticise the specific efforts of the present local authority on LD’s behalf, the Official Solicitor could not fail to note that there had been some specific notes of criticism made by the experts, not all of which, I recognise, are probably accepted. It was said that there had not been a concrete plan for LD to move on from [X] Court after almost a year of residence. It was said there had not been timely development of a “person centred care plan” for LD. Further, there was a view that at a time LD’s care was being “resource led in that his placement is largely determined by what is available in Havering and not by what is best for him as an individual”. In this case, Miss Richards submitted, far from hindering or delaying LD’s progress, the court process in fact galvanised it.
40 Mr. Norton, counsel for the Official Solicitor, on behalf of KD, broadly supported Miss Richards’ arguments. He reminded me the experts had “strongly agreed” it was in LD’s best interests for KD to have a role in her son’s care, wherever he resided. She was not, Mr. Norton stressed, a “difficulty to be overcome” but part of her son’s life and care overall. Her health fluctuated. At present she was clearly unwell. There were, however, periods when she was better placed to engage, take advice or contribute. Mr. Norton stressed that, even if appointed a deputy, the local authority would be in no position to, as he put it, “trump” KD. She would still need to be engaged and consulted. Mr. Norton shared the view of Miss Richards in relation to the discrete matters raised by the local authority. He urged that it would be wholly inappropriate to delegate to the local authority the ability to determine essentially routine medical issues, which should be the province of LD’s treating medical staff, operating under the Act and utilising the guidance in the code. He reasoned that contact could properly be managed via a contract, as the experts advocated, and that it would be a proper and proportionate use of the court’s power to provide some additional practical authority for the local authority to regulate contact, short of a full deputy appointment.
DISCUSSION
It has been the practice of the court to appoint welfare deputies only relatively rarely. That accords with the Code of Practice. The Official Solicitor considers the court’s general approach correct and suggests it is to be applied in this case. I accept that submission. I accept the submissions of Miss Richards generally in this case. I do not consider this to be an especially unusual or difficult case. I consider that the issue of residence has recently and successfully been resolved by the court. Other issues raised in support of the application strike me as either routine (and thus properly subject to s.5 protection) or very major (and thus the better for court scrutiny). Court orders can in appropriate circumstances be obtained very swiftly indeed.
I was not impressed by an argument based on avoiding delay. The authors of Mental Capacity: A Guide to the New Law (2 nd Edition) rightly noted, in my judgment, the application of the principle in s.16(4)(a) “suggests that there is little scope for the appointment of deputies on a general basis effectively to act as if they were donees of a general power under an LPA”. Later, they continued that “it is expected that a deputy will be appointed to take personal welfare decisions in only the most extreme cases and the court will usually seek to make an order in respect of a decision, rather than confer an ongoing power on a deputy”. That, I have concluded, is a proper summary of the position and reflects the desirable approach. Section 16(4) seems to me to be intended specifically to minimise the scope and duration of control. Specific decisions of the court are to be preferred to the ongoing appointment of a deputy and when a deputy must be appointed it is to be for the narrowest scope and the shortest time reasonably practicable in the circumstances.
The evidence and argument of the local authority, attractively and forcefully presented as it has been, has failed to persuade me on the unique facts of this case that LD’s best interests will be advanced by the local authority being appointed a deputy, effectively without limitation. The evidence does not persuade me that the absence of such an order is preventing services being provided or proper and conscientious care being afforded. Mere convenience to a local authority in a legitimate desire to avoid having to come to court is perhaps understandable but not relevant to the issue I must decide.
As Mr. Horton, for the local authority, recognised in closing, I need to be persuaded LD’s best interests now require the deputyship sought to be granted and, in essence, for the court not to be involved. I am not at present persuaded of that in all the circumstances of this case. The evidence does not convince me here that LD’s best interests will be advanced by the wide-ranging deputyship sought. I consider specific court decisions are in this case to be preferred in LD’s interests in any issues which cannot otherwise be resolved or agreed.
CONCLUSION AND ORDER
45 For these reasons I intend (1) to dismiss the application of the London Borough of Havering to be appointed as welfare deputy for LD. Having discussed in advance various alternatives with the parties, I do, however, propose to add the following to the order: (2) the local authority shall prepare a “contact contract” (as part of the person centred plan to be prepared) setting out reasonable contact expectations for KD and shall use their best endeavours to promote the contact in consultation with KD.
MR. HORTON: Your Honour, I think that may be my writing. The idea was that KD would be consulted in the formulation of that. That has not quite come out.
JUDGE TURNER: Yes. I shall remodel that, Mr. Horton, thank you very much.
The local authority shall, in consultation with KD ----
MR. HORTON: Your Honour, I think it was, “… shall use their best endeavour to prepare the plan in consultation with” ----
JUDGE TURNER: Yes. Please draw the order accordingly. That accords with my wishes, thank you.
(3) It is declared that it is in LD’s interests to have contact with KD. The local authority or staff at [Y] Lodge may terminate any contact visit if it is determined that prolonging the particular visit is contrary to LD’s welfare; (4) the local authority shall file and serve LD’s person centred plan by 4:00pm on 11 th September 2010; (5) the review hearing fixed for - date - October 2010 - it is not entirely clear to me when it is. I have seen the 13 th , but I have also seen an order not before the 15 th , so if you would insert the date in the draft - shall remain listed; (6) there will be a detailed assessment of the costs of assisted parties; and (7) there is permission for a suitably anonymised report of this judgment to be published, if so desired by any party.
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