Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1)

I am concerned with three applications for permission to apply for the appointment of personal welfare deputies (PWD), pursuant to Sec. 16 Mental Capacity Act 2005 (‘MCA 2005’). Following a Directions hearing on 19 ^th November 2018 my order made provision for the following:

There shall be a hearing to determine (a) whether permission should be granted in each application and (b) the preliminary issue raised by the applications, the two matters being intrinsically related.

The Official Solicitor shall be appointed as advocate to the court.

The Public Guardian is invited to file written submissions, or to participate as a respondent if so advised.

The applicants have permission to provide documents filed in the applications to the Official Solicitor and the Public Guardian.

The Official Solicitor has permission to file witness evidence, if so advised, by 14 January 2019.

The applicants, the Official Solicitor, and if so advised the Public Guardian shall exchange skeleton arguments by 4pm on 4 February 2019.

The ‘preliminary issue’ was framed as: “What is the correct approach to determining whether a welfare deputy should be appointed?”

In particular focus was the question as to whether such appointments should only be made “in the most difficult cases” and if so, to consider “what the implications for that are in practice?” I directed that these matters should be listed for determination at a single hearing. I am grateful to the Official Solicitor for accepting appointment as Advocate to the Court and to Mr David Rees QC, who has acted on his behalf.

As Mr Rees pointed out in the prefacing remarks to his submissions, the role of the Advocate to the Court is a circumscribed one. It is helpful to remind the profession and inform the wider readership of this judgment of its limitations and its obligations. The Attorney-General’s memorandum, 19 ^th December 2001, [2002] Fam Law 229 notes:

The Court of Protection is enabled to arrange for preliminary issues of this kind to be determined pursuant to the Court of Protection Rules 2017:

Though I am considering the scope and breadth of the applicable provisions, it is right that I highlight something of the circumstances of the three young people on whose behalf the applications are brought. The mothers of each applicant were present in Court. It is manifest that they are highly motivated to achieve all that is possible for their children. However, the point they raise is identified by them as having much wider application for vulnerable young adults generally. Their case has been crowdfunded.

In addition to what I have read about these young adults, I have also been provided with video recordings of each. Oscar Mottram is now aged 24 years old. He is non-verbal and has been diagnosed with autism, severe learning disabilities, epilepsy, anaphylaxis and gut problems. He is fortunate to be able to live in a self-contained flat in his parents’ house. He requires 24-hour care, and is in receipt of a significant package of care funded by London Borough of Brent and Brent Clinical Commissioning Group, though the two statutory bodies are engaged in a long-running dispute over what his care needs are and which of them should be providing funding. In common with the other two young adults, I was struck by how impressively well cared for Oscar is. Also, if I may say so, I had at least a glimpse of how physically and emotionally exhausting it must be for the parents to meet his needs. It is obvious that each of the parents in this case, though sensitive to the challenges they must confront, nonetheless properly regard their responsibilities as a privilege.

Domenica Lawson is now 24 year old young woman who has Down’s Syndrome and a

Oliver Hopton is a 20 year old young man. He has a diagnosis of severe autism. I found his situation particularly affecting. He requires constant supervision and support with everyday activities. I am told that Oliver has previously suffered assault and mistreatment in two residential placements. I have little doubt that it is because of this truly disturbing history that he now lives at home with his mother and brother. His mother provides the bulk of Oliver’s care. Again, if she will permit me to say so, it is clear that she is heroic in her love for and commitment to her son. In case she does not realise it, it requires to be said, she is doing an absolutely brilliant job.

Whilst I am highlighting the individual circumstances of each young adult, I nonetheless bear in mind that interpretation of the relevant provisions requires me to recognise the potential for wider resonance. These individual cases have some similarities (i.e. they concern young adults; congenitally impaired, with supportive families; in each case parents or other close family members are proposed Deputies, one of the proposed Deputies for Domenica is her sister). There is a wider variety of cases to contemplate. These will include, for example, complex medical conditions; acquired catastrophic brain injury; issues relating to undue influence; deputies who are non-family members and/or professional deputies.

The provision in focus here is Section 16 MCA 2005. It provides for the appointment of deputies. No distinction is made between financial and welfare deputies. It is necessary to set the section out in full:

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.

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).

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–

a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.”

Ms Butler-Cole QC, who appears on behalf of the Applicants, properly emphasises the guidance in the explanatory notes to s.16 which read as follows:

The MCA Code of Practice also contains guidance in respect of both deputyship applications, generally, and in respect of welfare decisions in particular. Mr Rees is careful to point out that the status of the Code of Practice is essentially, in this context, an aid to interpretation. Lamentably, the Court of Protection does not have a Statutory Rules Committee, notwithstanding the efforts of four consecutive Presidents of the Court and that of two Vice-Presidents. I have recently been reassured, at the highest level, that this will be remedied “as soon as Parliamentary time becomes available”. The Court does have an Ad-hoc Rules Committee which functions effectively. This committee did not have input into the first version of the Code of Practice. Its role was confined to the Court of Protection Rules 2007 and accompanying practice directions. Section 42 MCA 2005 requires the Lord Chancellor to issue one or more Code of Practice dealing with many prescribed matters, including:

the guidance of persons acting in connection with the care or treatment of another person under s 5 MCA 2005;

the guidance of deputies appointed by the court, and iii. such other matters concerned with the MCA 2005 as he thinks fit.

The present Code of Practice, encompassing each of the above, was laid before Parliament on 23 ^rd April 2007. The MCA Code of Practice is currently the subject of a review by the Ministry of Justice and a call for evidence in this regard closed on 7 ^th March 2019. It is tentatively anticipated that a new Code of Practice will be laid before Parliament later this year. MCA 2005 Section 42(4) imposes a duty on certain persons to have regard to a relevant code; the class of persons subject to this duty includes deputies appointed by the Court under Section 16(2)(b) MCA 2005, persons acting in a professional capacity and persons acting for remuneration.

Section 42(5) provides, in relation to civil proceedings, that if it appears to a court that a provision of the Code of Practice is relevant to a question arising in the proceedings, that provision must be taken into account in deciding the question.

It is axiomatic that the Code of Practice is not a statute. It is an aid to the interpretation of the law, not a primary source of law. I agree with the submission of Mr Rees that where a conflict arises between the Act or the Rules or, indeed existing authority, and the Codes of Practice; it is the MCA 2005 (or as the case may be, the COPR 2017 or case law) which must be taken as representing the law. Thus, Mr Rees submits, by way of parity of analysis, that in An NHS Trust v Y [2018] UKSC 46 ; the Supreme Court concluded that the Code could not create a substantive obligation to apply to the Court in every case where the withdrawal of Clinically Assisted Nutrition and Hydration (CANH) was proposed (per Lady Black):

Wood J set out the approach in PBA v SBC [2011] EWHC 2580 (Fam); [2011] COPLR Con Vol 1095:

the words of the statute are the essential provisions laid down by Parliament;

whatever its genesis and weight, the Code of Practice is indeed only guidance;

there is a reasonable expectation in the Code that its provisions should be followed;

departure from it, if undertaken, should require careful explanation;

as I have said already, it remains essentially guidance – however weighty and significant – and is not the source of the relevant power which is to be found only in the statutory provision;

in any event, I do not interpret (if I may respectfully say so) the careful and erudite discussion of this issue by Baker J or indeed His Honour Judge Turner QC (quoted above) as advocating a contrary approach.”

Additionally, Ms Butler-Cole marshals Chapter 14 of the Code as part of her contention that there exists an unduly restrictive regime of appointment for welfare deputies. That chapter is headed ‘What means of protection exist for people who lack capacity to make decisions for themselves?’ Ms Butler-Cole emphasises the following guidance:

Individuals do not choose who will act as a deputy for them. The court will make the decision. There are measures to make sure that the court appoints an appropriate deputy. The OPG will then supervise deputies and support them in carrying out their duties, while also making sure they do not abuse their position.

When a case comes before the Court of Protection, the Act states that the court should make a decision to settle the matter rather than appoint a deputy, if possible. Deputies are most likely to be needed for financial matters where someone needs continued authority to make decisions about the person’s money or other assets. It will be easier for the courts to make decisions in cases where a oneoff decision is needed about a person’s welfare, so there are likely to be fewer personal welfare deputies. But there will be occasions where ongoing decisions about a person’s welfare will be required, and so the court will appoint a personal welfare deputy (see chapter 8).

Accordingly, it is against this backdrop that I consider the guidance in the Code of Practice, relating to deputyship applications. Inevitably, these have been much in focus during submissions by both counsel and must be set out in full:

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.

In cases of serious dispute, where there is no other way of finding a solution or when the authority of the court is needed in order to make a particular decision or take a particular action, the court can be asked to make a decision to settle the matter using its powers under section 16. However, if there is a need for ongoing decision-making powers and there is no relevant EPA or LPA, the court may appoint a deputy to make future decisions. It will also state what decisions the deputy has the authority to make on the person’s behalf.

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.

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.

The critical guidance relating to welfare decisions needs to be highlighted and with (my) emphasis:

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.

The illustrations for the implementation of this code are also of particular importance:

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 from having contact with the person.

Ms Butler-Cole has surveyed a wide range of material in the attractive presentation of her argument. It is challenging to encapsulate the breadth and ambit of her submissions. Nonetheless it is necessary to do so. Central to her case and strongly disputed by the Official Solicitor, is her contention that there is currently ‘confusion’ and ‘lack of clarity’ as to the correct approach to be taken in the appointment of a welfare deputy.

In his equally erudite submissions Mr Rees covers substantial forensic territory. In summary, he submits that in each individual case the Court is required to determine whether (having regard to the statutory principles embodied in the MCA 2005) it is in P’s best interests to appoint a personal welfare deputy. There should, he contends, be no ‘starting point’ or ‘presumption against the appointment of personal welfare deputies’ (my emphasis). However, Mr Rees analyses both the structure of the MCA 2005 and the principles embodied within it as likely to lead to the outcome that the appointment of a personal welfare deputy will not usually be regarded as being in P’s best interests.

Mr Rees expands his argument by pointing to what he identifies as the ‘fundamental difference between the status of adults and children’. A PWD should not become a process by which adults are effectively infantilised.

Finally, it is contended by the Official Solicitor that the elevation of the importance of P’s wishes or likely wishes, implicit or perhaps explicit in Ms Butler-Cole’s argument, is a distortion of the defining principles of the MCA, set out in Section 4.

Pursuant to my order of 19 ^th November 2018 (see para 1 above), a statement has been filed by Ms Julie Lindsay, Chief Operating Officer, Office of the Public Guardian in England and Wales (OPG). The statement provides the Court with details of the role of the Public Guardian in relation to the supervision of deputies in general and the work done with PWDs in particular. The statement contains some useful data. Property and affairs deputyships endure (in the sense that the “case remains active”) for an average of 3.58 years. PWD cases average 4.35 years. The age of the individuals subject to PWD is on average younger than those subject to a property and affairs deputyship. The graph provided shows a spike between the ages of 18 and 24 years of age. This strikes me as poignant, it occurs precisely at a stage when all parents are most anxious about their children managing in an adult world. This natural and human anxiety must be particularly frightening and profound for the parent of a child facing adulthood with significant disabilities.

The number of PWDs (including hybrid appointments) received since 2007 has grown significantly. In 2007 there were only three PW cases. In 2005 there were ninety-five. There was a significant spike in 2015, for no reason that I have been able to identify and the numbers have remained relatively static since then (averaging around 375 per year). Of course, this must be placed in the context of very significant increases in applications generally. Ms Lindsay has provided some useful information from the OPG which places these appointments in practical context and casts light on the realities of what is involved as a PWD. This data is important in understanding the likely consequences of the different constructions contended for. This, it must be remembered, was identified as part of the exercise in the Court’s directions of 19 ^th November 2018. At risk of overburdening this judgment I consider it useful to highlight the following passages from Ms Lindsay’s statement:

PW deputies are supervised via visits, ongoing contact with deputies and annual self-reporting. Within the first few weeks of receiving an order appointing a PW deputy there is initial phone contact made with the deputy to introduce OPG, clarify the deputy’s duties and responsibilities, and check that they understand the terms of their court order. This does not extend to legal advice. A deputy will be provided a guidance booklet ‘How to be a Health and Welfare Deputy’ (SD4) and will be referred to their duties under the MCA 2005 and the Mental Capacity Act 2005: Code of Practice…

In hybrid cases, a deputy will also be provided with guidance in relation to their role as deputy for property and affairs. Within the first six months, a visit is arranged. If the OPG are satisfied that there are no concerns regarding the deputyship, a further visit will typically take place 18 months later. That is two visits in two years. After that the visits will occur every two- three years, with phone call support provided for ongoing guidance, to answer queries and to give the deputy the option of an annual visit if necessary. Visits are carried out by Court of Protection Visitors appointed by the Lord Chancellor under section 61 of the MCA 2005 and are arranged by OPG pursuant to section 58(1)(d) of the MCA 2005. In some cases, a Special Visitor may carry out a visit when there is a need for expert medical opinion however in most cases, visits are carried out by a General Visitor who will typically have some form of social work or other relevant background.

The visitor will normally see the deputy and the person subject to the order, and will assess whether the deputy is making use of the order, if s/he is involving the person in decisions where possible, and if not possible, is making decisions in the best interests of the person. The visitor will also seek comments from any relevant care provider, etc in order to get their view on how the deputy is acting under their order. Following the visit, the visitor will compile a report that details the visit and the information they have obtained. In each report the visitor rates the visit ‘green’, ‘amber’ or ‘red’. A ‘green’ visit indicates that the visitor believes there are no concerns regarding the case and will result in the visit schedule as set out in paragraph 17 above. An ‘amber’ visit indicates that the visitor believes there is follow up action required by OPG but that is not urgent and will result in a visit 18 months later unless the visitor recommends otherwise. A ‘red’ visit indicates that the visitor believes there is urgent follow up action required by the OPG and will often result in a visit within the next 12 months unless the visitor recommends otherwise.

All visit reports are reviewed by the Health and Welfare Team and are followed up with the deputy and others as appropriate, the team addresses any recommendations made by the visitor and to resolve any questions or concerns. Some deputies get yearly visits for extra support if required. For example, where both the deputy and the client are blind. The deputy is also required to complete an annual report (form OPG104) which outlines the decisions that have been made, and how the MCA 2005 was complied with…

It is not practical for the deputies to provide details in relation to every decision that they have supported the vulnerable adult with. As such the annual report is only asking in respect of larger decisions. All reports from health and welfare deputies are subject to review by case managers on the Health and Welfare Team and any concerns or questions are followed up with the deputy.

Where it is deemed appropriate that follow up action is taken by OPG, whether that is resulting from information that has been gathered following a visit, a submitted annual report or has otherwise been brought to OPG’s attention (E.g. by a concern raiser); an OPG case manager will continue to monitor the case until the matter is resolved or it is considered necessary for OPG to take further action.

In summary, at the end of her statement, Ms Lindsay identifies the kind of concerns that arise in relation to the actions of PWDs:

makes decisions on behalf of a vulnerable adult that they are either deemed to have capacity to make or can express a clear wish to the contrary; and/or

makes continual and/or unreasonable demands of professionals and those involved in the vulnerable adult’s care that negatively impacts on the provision of care that is otherwise deemed to be in the vulnerable adult’s best interests.

The case law has been cited to me extensively but it has focused upon four cases in particular: KD v Havering [2010] EWHC 3876 (COP) [2010] COPLR Con Vol 809; Re P [2010] EHWC 1592 Fam [2010] 2 F.L.R. 1712, and G v E [2010] 2512 (COP); [2011] 1 F.L.R. 1652, and SBC v PBA and Others [2011] EWHC 2580 (Fam), [2011] COPLR Con Vol 470. In fact, a number of these cases are primarily concerned with the identity of the PWD rather than the criteria for appointment which is touched on only tangentially.

In G v E (supra) Baker J, as he then was, considered an application by P’s sister and a foster carer jointly to be appointed as PWDs. There was, as sadly can arise, a background of conflict between P’s family and the Local Authority. Baker J refused the application:

I do not consider that Baker J was saying anything that is inconsistent with my reasoning above, relating to the weight to be given to the Code of Practice. Baker J amplified his approach to the construction of the Act and the Code by analysing the scheme of the MCA as a whole in these terms:

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. …”

It appears to have been argued before Baker J that Hedley J’s comments in Re P (supra) were intended to indicate that family members should perhaps, as a matter of course, be appointed PWDs, irrespective of the circumstances. Baker J goes to some lengths to refute this. It seems to me that it would require a complete distortion of Hedley J’s judgment to extract such a conclusion from it. The judgment is simply not directed to the relevant exercise. Baker J is addressing the applicable criteria in the way that I am required to. He observes the following:

Baker J returned to his consideration of these issues in A Local Authority v TZ [2014] EWCOP 973. The Court was considering an application to appoint a Local Authority employee as a welfare deputy for a young man who needed considerable support in decision taking in the interpersonal sphere and particularly about those with whom it was safe to commence a relationship:

The position of the Official Solicitor is recorded but not commented upon:

I am bound to say that I consider that when evaluating both the statute and the Code in relation to the appointment of a “decision maker”, which in truth is the essence of the role of the PWD, it requires to be justified by reference to the legitimacy of its objectives and the proportionality of its intervention i.e. it must engage with the rights protected by Article 8 ECHR. Ms Butler-Cole points to the following paragraph, in which she respectfully submits that Baker J leans too heavily, in his analysis, on the provisions of the Code regarding them as, in effect, a primary source of law rather than interpretative guidance:

Inevitably, counsel in their submissions have concentrated on the case law relating to the appointment of welfare deputies rather than those for financial affairs. I note that the case law in relation to the appointment of property and affairs deputies is almost entirely focused on the suitability of the individual, rather than the necessity for an appointment. However, Mr Justice Charles, as Vice-President of the Court of Protection, made the following observations in Watt v ABC [2016] EWCOP 2352 , which are of some application here. I highlight those passages which I consider to be of relevance:

a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances create a presumption or bias against (rather than for) the appointment of a deputy. However, in my view this is not the case and all that this sub-section does is to add factors that the COP is to take into account and weigh in reaching its decision. So those particularised factors have to be weighed against factors that would favour the appointment of a deputy rather than the COP making a series of orders. To my mind this applies whether or not the deputy is appointed to make decisions relating to property and affairs or welfare or both. In both property and affairs cases and welfare cases there will be important one off decisions and in such cases the principles and so factors set out in s. 16(4) would be likely to point in favour of the COP making the decisions. But in both a need to make a number of decisions on a single matter (e.g. selling a house or a course of treatment), or on a number of day to day matters over a long period (e.g. management of a person's day to day affairs relating to expenditure and/or their care and support plan) will often arise that will clearly outweigh the principles identified in s. 16(4). In many such cases regular return to the COP would be unnecessarily time consuming, emotionally stressful and expensive and so contrary to P's best interests. I add that it seems to me that a refusal or reluctance based on s. 16(4), or a general approach, to appoint a deputy in welfare cases simply because they are welfare cases and s. 5 applies is not justified.”

In the above paragraph Charles J has identified the central issue in entirely uncompromising terms: i.e. is there a presumption or bias against the appointment of a PWD in the Code and statutory scheme?

Also filed within the application is a statement by Dr Lucy Series, research fellow and lecturer in the School of Law and Politics at the University of Cardiff. Dr Series has worked on a range of research projects concerning the UN Convention on the Rights of Persons with Disabilities. She has given evidence to the National Institute for Clinical Excellence (NICE), relating to supported decision taking and provided technical expertise to the World Health Organisation (WHO). In her witness statement she observes the following:

There are several reasons why the court does not consider it necessary to appoint a deputy to make personal welfare decisions. The main reason is that section 5 of the MCA confers a general authority for someone to make decisions in connection with another’s care or treatment, without formal authorisation, provided: that P lacks capacity in relation to the decision; and it would be in P’s best interests for the act to be done.

Another reason is that, when considering the appointment of a deputy, the court is required to apply the principles in section 16(4) that: “(a) a decision of the court is to be preferred to the appointment of a deputy to make a decision; and (b) that the powers of the deputy should be as limited in scope and duration as is practicable in the circumstances.” In reality, a deputy is rarely needed to make a decision relating to health care or personal welfare, because section 5 already gives carers and professionals sufficient scope to act.

The final reason is that personal welfare decisions invariably involve a consensus between individuals connected with P - healthcare professionals, carers, social workers and family - about what decision is in P’s best interests. If the court appoints a personal welfare deputy, particularly if it’s done without a hearing and considering oral arguments from each side, it could upset the balance of that consensus, and could be seen to favour the deputy’s views over others’.

Dr Series presses her thesis robustly and is forceful in her critique of both the MCA and the case law:

Though the concept of professionals and families ‘working together’ is one of the shibboleths of modern safeguarding theory, Dr Series asserts that this appears to have little reality in practice nor indeed, she contends, is it coherently structured in statute or Code:

Whilst it is helpful to have conventional orthodoxies challenged by radical alternatives, it is, in my view, essential, if the dialectic is to be worthwhile, to construct the debate here securely within the fundamental principles of the Act. At its essence, the MCA seeks to empower incapacitous people to make or to participate in making decisions for themselves whilst, equally, protecting them from harm when they are unable to do so. It is an equation in the true sense of the word, i.e. both imperatives are of equal weight. I do not consider that Dr Series engages with this in her witness statement. Moreover, I have found the elision of different concepts in one analytical exercise to be confusing. Thus, in the paragraph above I find myself querying why ‘informed decisions, made by consensus’ should be required to stand up to ‘legal analysis’. This strikes me as an artificial and formulaic approach to what is ultimately the inevitable raft of usually minor decisions that we all take on a day to day basis.

It seems almost trite to set out the statutory background as the principles are not only well known to practitioners but, I am sure, known and understood by the applicants. However, their impact is so significant to our approach to the individual provisions of the Act and its objectives as a whole that they require to be stated. Mr Rees summarised them thus in his position statement:

A person must be assumed to have capacity unless it is established that he lacks capacity;

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;

A person is not to be treated as unable to make a decision merely because he makes an unwise decision;

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;

Before the act is done, or the 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.

Sections 2 and 3 define mental capacity for the purposes of the MCA 2005. The test of capacity has two elements, both of which must be present before a person can be found to lack capacity. There must be an inability to make a decision, and this must be because of an impairment of, or a disturbance in the functioning of, the mind of brain. The need for this causal nexus was emphasised by the Court of Appeal in PC v City of York Council [2013] EWCA Civ 478; [2013] COPLR 409.

If a person lacks capacity to make a decision then the Act provides various ways in which decisions can be taken for or in relation to them:

If the person in question has made a lasting or enduring power of attorney, then decisions may be taken for or on behalf of the donor of the power by their attorney;

In relation to matters relating to care and treatment, decisions may be effectively taken on an informal basis under section 5 MCA 2005. Section 5 does not confer a substantive right on any person to take decisions, but prevents civil or criminal liability arising in respects of acts done in connection with the care or treatment of a person who lacks capacity in relation to that matter, provided that the person carrying out the act reasonably believes that it would be in the other person’s best interests to carry out the act;

As set out above, any act done, or decision made for or on behalf of a person who lacks capacity must be done or made in their best interests. The MCA 2005 does not contain a specific definition of “best interests”. However, section 4 sets out various factors which must be taken into account when determining best interests;

A decision by the court to appoint a deputy under s 16(2)(b) is not itself a decision made “for or on behalf of a person who lacks capacity”. However, section 16(3) provides that the powers of the court under the section are subject to the provisions of the MCA 2005 generally, and specifically are subject to the applications of sections 1 and 4.The statutory best interests test accordingly applies to such a decision;

In addition, section 16(4) adds two further principles which the court is required to take into account and weigh when determining whether to appoint a deputy namely:

The efficacy of the MCA is dependent upon getting the balance right between empowering and protecting the incapacitous. This tension, right at the heart of the Act, is a healthy one. In every decision and at every stage it requires to be at the centre of

Mr Rees was troubled, as I confess am I, by Dr Series’ statement. He suggested that it might be preferable to treat it as an ‘academic article being cited in argument by the applicants’ rather than to give it the formal status of witness evidence. Certainly, the statement does not comply with paras 9 – 11 of PD 15A but nor does it seem to me, for the reasons I have alluded to, to impose upon itself the usual rigours of an academic paper. It struck me as polemical in tone. The sincerity and commitment of the author to her argument cannot be doubted and, as I have said, is a useful platform from which to reassess some of the conventional orthodoxies.

Mr Rees takes issue with two specific points advanced by the applicants which are rooted in Dr Series’ statement. He addresses these as follows:

To my mind and with respect to her, Dr Series conflates two entirely different concepts. Evaluating the “proportionality” of appointing a welfare deputy as potentially less restrictive than informal decision making under s.5 MCA, requires us to discount both the efficacy and desirability of taking decisions collaboratively and informally wherever possible. To disregard the very clear lessons from both research and public enquires, stretching back over thirty years, which emphasise the importance of agencies working together in order most effectively to promote the best interests of the vulnerable, would be irresponsible. Thus, evaluating the proportionality of the two options is misconceived. They are apples and pears. They are essentially different regimes which are triggered by P’s individual circumstances.

The second point, which is inextricably connected to the above, is the contention that decisions made by a PWD may, in principle, be preferable to the informal decision making contemplated by Section 5 MCA with the following caveat:

Mr Rees submits this goes too far and subverts the entire hierarchy of decision making, embodied in the MCA. He makes the point that for the argument to have logical integrity it must be predicated on the assumption that the PWD’s decision will be reflective of P’s wishes and feelings as either expressed or interpreted. This simply cannot be reconciled with the best interest test under Section 4 MCA nor should it be. I agree with both these criticisms.

The evolution of the Court’s approach to identifying best interests is particularly abundant in the case law of the last five years. In the context of Clinically Assisted Nutrition and Hydration cases the recent guidance by the Royal College of Physicians and the British Medical Association (BMA) plots, with great care, the evolution of the Court’s approach to identifying best interests which is guided by a multifaceted enquiry into P’s circumstances e.g. medical, interpersonal, cultural as well as focusing on expressed or interpreted wishes, feelings and beliefs.

The MCA deliberately and, in my judgement properly, avoided straining for a definition of ‘best interests’. Instead, it sets out a process to be followed when taking a decision. In some cases, the process will be reasonably straightforward in others it will be more extensive and formal. It is properly described as an exercise requiring subtlety and nuance and must not be skewed by giving weight to one particular factor, such as P’s wishes and feelings. To my mind this would have the consequence of replacing one perceived ‘presumption’ with another. The magnetic north in the legislation is that every P is an individual and every decision is issue specific. Furthermore, promoting supported decision making is, to my mind, more likely to be achieved by the informal holistic approach contemplated by Section 5 MCA.

Having reviewed the case law to the extent that I have, I do not accept the primary submission of the applicants that the current case law is either contradictory or confused. As I have sought to illustrate it has evolved and refined as the Court has been required to address the challenging and diverse issues that have come before it. It is also discernible that the Court is gradually and increasingly understanding its responsibility to draw back from a risk averse instinct to protect P and to keep sight of the fundamental responsibility to empower P and to promote his or her autonomy. This can be seen in every aspect of the work of the Court of Protection and is exemplified in recent case law. See: Re DE [2013] EWHC 2562 (Fam); LBX v K, L and M [2013] EWHC 3230; A Local Authority v TZ [2013] EWCOP 2322; The Mental Health Trust & Ors. v DD & Anor [2014] EWCOP 13; CH v A Metropolitan Council [2017] EWCOP 12; B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3; London Borough of Tower Hamlets v NB and AU [2019] EWCOP 17 .

The Court of Protection Handbook (Ruck-Keene et al – 2^nd ed 2017) emphasises that whatever the phraseology of the Code of Practice, each case is to be evaluated on its individual merit. It is expressed, at 3.134, in language which is striking: ‘a symmetry emerges from the shadows which is consistent with the ethos of the legislation in enabling a judge to advance the best interests of people who have lost capacity…’ Later the Handbook notes as follows:

Thus, a number of clear principles emerge:

The starting point in evaluating any application for appointment of a PWD is by reference to the clear wording of the MCA 2005. Part 1 of the Act identifies a hierarchy of decision making in which the twin obligations both to protect P and promote his or her personal autonomy remain central throughout;

Whilst there is no special alchemy that confers adulthood on a child on his or her 18 ^th birthday, it nevertheless marks a transition to an altered legal status, which carries both rights and responsibilities. It is predicated on respect for autonomy. The young person who may lack capacity in key areas of decision making remains every bit as entitled to this respect as his capacitous coeval. These are fundamental rights which infuse the MCA 2005 and are intrinsic to its philosophy. The extension of parental responsibility beyond the age of eighteen, under the aegis of a PWD, may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against. The imposition of a legal framework which is overly protective risks inhibiting personal development and may fail properly to nurture individual potential. The data which I have analysed (paragraph 26 above) may, I suspect, reflect the stress and anxiety experienced in consequence of the transition from child to adult services. As a judge of the Family Division and as a judge of the Court of Protection I have seen from both perspectives the acute distress caused by inadequate transition planning. The remedy for this lies in promoting good professional practice. It is not achieved by avoidably eroding the autonomy of the young incapacitous adult;

The structure of the Act and, in particular, the factors which fall to be considered pursuant to Section 4 may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the Court to appoint a

The above is not in any way to be interpreted as a statutory bias or presumption against appointment. It is the likely consequence of the application of the relevant factors to the individual circumstances of the case. It requires to be emphasised, unambiguously, that this is not a presumption, nor should it even be regarded as the starting point. There is a parallel here with the analysis of Baroness Hale in Re W [2010] UKSC 12. In that case and in a different jurisdiction of law, the Supreme Court was considering the perception that had emerged, in the Family Court, of a presumption against a child giving oral evidence. The reasoning there has analogous application here:

To construct an artificial impediment, in practice, to the appointment of a PWD would be to fail to have proper regard to the ‘unvarnished words’ of the MCA 2005 ( PBA v SBC [2011] EWHC 2580) (Fam ). It would compromise a fair balancing of the Article 6 and Article 8 Convention Rights which are undoubtedly engaged; f) The Code of Practice is not a statute, it is an interpretive aid to the statutory framework, no more and no less. It is guidance which, whilst it will require important consideration, will never be determinative. The power remains in the statutory provision;

The prevailing ethos of the MCA is to weigh and balance the many competing factors that will illuminate decision making. It is that same rationale that will be applied to the decision to appoint a PWD;

There is only one presumption in the MCA, namely that set out at Section 1 (2) i.e. ‘a person must be assumed to have capacity unless it is established that he lacks capacity’. This recognition of the importance of human autonomy is the defining principle of the Act. It casts light in to every corner of this legislation and it illuminates the approach to appointment of PWDs;

P’s wishes and feelings and those other factors contemplated by Section 4 (6) MCA will, where they can be reasonably ascertained, require to be considered. None is determinative and the weight to be applied will vary from case to case in determining where P’s best interests lie ( PW V Chelsea and Westminster Hospital NHS Foundation Trust and Others [2018] EWCA 1067 );

It is a distortion of the framework of Sections 4 and 5 MCA 2005 to regard the appointment of a PWD as in any way a less restrictive option than the collaborative and informal decision taking prescribed by Section 5;

The wording of the Code of Practice at 8.38 (see para 20 above) is reflective of likely outcome and should not be regarded as the starting point. This paragraph of the Code, in particular, requires to be revisited.

These three cases were joined in order to seek to persuade the Court to clarify practice and procedure in the appointment of PWDs in the Court of Protection. In undertaking this challenge, I have received formidable support from leading counsel for both parties.

Ms Butler-Cole also recognises that the individual applicants should now be afforded the opportunity to reflect on this judgment and to consider how best or indeed whether to pursue their respective applications. If restored these may now be reallocated to either a Tier 1 or Tier 2 judge, the only Tier 2 judge who regularly sits at First Avenue House is HHJ Hilder.