The Vice-President of the Court of Protection has outlined a set of principles to govern the appointment of personal welfare deputies. In Re Lawson, Mottram and Hopton (appointment of personal welfare deputies)  EWCOP 22, a preliminary issue was listed in three applications for permission to apply for the appointment of a personal welfare deputy, namely “what is the correct approach to determining whether a welfare deputy should be appointed”? In particular, the question was whether such appointments should only be made – as the Code of Practice suggests (at paragraph 8.38) – in “the most difficult cases.”
To answer this question, Hayden J looked in some detail at the case-law, the Code, the structure of the MCA and the appointment of deputies in practice, including a rehearsal of evidence provided by the Office of the Public Guardian as to the numbers of personal welfare deputy appointees (currently averaging about 375 per year, compared to an average of around 15,000 property and affairs deputies) and the role of the OPG in supervising them.
Hayden J considered that the case-law showed the Court of Protection:
51 […] 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.
Having concluded his review, he held at paragraph 53 that a number of “clear principles” emerge:
a) 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;
b) Whilst there is no special alchemy that confers adulthood on a child on his or her 18th birthday, it nevertheless marks a transition to an altered legal status, which carries both rights and responsibilities. It is predicated on respect for autonomy. 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;
c) 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 PWD;
d) 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  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:
22.”However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so. The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.”
e) 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  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;
g) 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;
h) 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;
i) 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  EWCA Civ 1067);
j) 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;
k) 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.
Hayden J neither granted nor refused permission to the three applicants before the court, so their applications for permission to apply (and, if that is granted, to be appointed as personal welfare deputies) will have to be considered in light of these principles.
The principles set out above are quite densely expressed. However, they can be summarised as:
- The Code of Practice is wrong insofar as it suggests that the starting point is that personal welfare deputies should only be appointed in the most difficult cases;
- Each case falls to be decided on its merits, and by reference to whether an appointment is in the best interests of P;
- P’s wishes and feelings will form an aspect of that decision (for instance if it is clear that P would wish a family member to be appointed to be their personal welfare deputy);
- The proper operation of s.4 and s.5 means that, in practice, personal welfare deputies will not often be appointed, in particular because the appointment should not be seen, in and of itself, as less restrictive of P’s rights and freedoms than allowing for the normal operation of s.5 decision-making.
In reaching his conclusions, Hayden J very clearly took a side in a debate that has been simmering for some time (and is an extension of that which is troubling the Supreme Court in Re D at the moment), namely the extent to which the rights of parents to have a specific role in decisions relating to their children should be extended where those children will always have impaired decision-making capacity. This graphic by Cara Holland at Graphicchange (@graphichange) summarises that debate in visual form:
The dilemma encapsulated here extends beyond 18 where the end of legal parental responsibility does not lead to the end of their emotional and moral responsibility. Hayden J’s judgment makes clear that majority does, in fact, mean majority, and a deviation from the ‘ordinary’ decision-making structure set up under s.5 MCA 2005 will have to be justified.
Some reading the judgment might feel that it does not face head on the practical realities of decision-making in relation to those with impaired capacity. Despite cases such as Winspear emphasising that a failure properly to consult those interested in P’s welfare has legal consequences, it is clear that many family members feel excluded from decision-making. Sometimes, this is because others involved are seeking to develop P’s autonomy and enable them to secure their own life choices; sometimes this is for rather less noble reasons.
Others reading the judgment may feel relieved that Hayden J ‘held the line’ in terms of the decision-making structure under s.5 MCA 2005, which deliberately seeks to limit interference with legal capacity to specific issues and specific decisions, rather than handing extended surrogate decision-making power to one person and thereby, for benign reasons, depriving P of legal capacity. Although the CRPD made an entry in the case in support of the proposition that the court should be more willing to appoint personal welfare deputies where that choice represented the wishes and feelings of P, it could also have been deployed in support of the argument that a broader presumption in favour of appointment of such deputies would represent a move away from compliance with Article 12 CRPD by rendering more widespread the legal ‘incapacitation’ of individuals with impaired capacity.
In practical terms, one very clear implication of this judgment is that it will be necessary to explain in any application for appointment as a personal welfare deputy why the ‘collaborative and informal’ decision-making structure that the MCA has put in place has not been serving P’s interests.
 Note, the judgment uses the acronym ‘PWD,’ which may produce inadvertent cognitive dissonance in some as in other contexts it refers to “persons with disabilities.”