Judge Finds Current Code Should Be Amended
Families have been given hope after a judge clarified the law surrounding how decisions affecting the future of young people with learning disabilities are made.
The parents of three young people with learning disabilities launched legal action in the Court of Protection to challenge the current welfare deputyship law, which relates to how decisions are taken on behalf of adults over 18.
Under the current law, the parents are responsible for their children up until they become adults, at which point the Mental Capacity Act states that decisions on their behalf should be taken collectively by everyone interested in their welfare, and the family should only be appointed as welfare deputies in ‘the most difficult cases’.
The families from London, Brighton and Windsor instructed specialist public law and human rights lawyers at Irwin Mitchell to bring a test case. During a court hearing in the Court of Protection in March, lawyers argued that the Code of Practice which guides the courts’ interpretation of the Mental Capacity Act should be amended.
The Honourable Mr Justice Hayden, Vice President of the Court of Protection, has today handed down judgment ruling that there should not be a starting presumption against the appointment of a welfare deputy and that the “wording of the Code of Practice….requires to be revisited.”
Expert Opinion“This challenge was brought because our clients and many other parents believed that the law, which stated that they would only be appointed as deputies in ‘the most difficult cases,’ needed to be changed.
“All they want is to be able to help their children have the best chance in life but felt this was not happening because of how the law was interpreted.
“Our clients appreciate that the court will need to consider every application on its merits, but welcome today’s ruling. They hope that now that the Judge has clarified that the Code needs to be redrafted, making it clear that there is no presumption against them being welfare deputies, that it will become more common for family members to be appointed as welfare deputies.
"Although the Judge has suggested that in the majority of cases a welfare deputy will not be needed, our experience and that of our clients is that in many cases it would indeed be in the young adult’s best interests for their family to be able to continue to make decisions in their loved one’s best interests where they are unable to make the decision themselves.” Alex Rook - Partner
During the case it was argued that families were ignored and decisions taken without them being consulted. The families said that frequently these decisions were taken by social services departments who did not know their children and that funding was a more important factor in such decisions than their children’s best interests.
At present parents are only appointed as ‘welfare deputy’ status in rare and complex cases.
Rosa Monckton, 65, has been a disability rights campaigner for more than 20 years. She was made an MBE in 2017 for her work.
Rosa’s daughter Domenica, 24, has Down’s syndrome. She recently started a job working in a café, receiving her first wage.
Rosa said: “Domenica continues to defy all those who said she would not walk, talk or get a job. We cannot be any prouder of her and the determination she shows. However, Domenica, like many other young people with a disability, still requires direction and guidance to help her make the most of life.
“While support agencies have a role to play there is nobody better placed than parents to help make informed decisions in her best interests where she is unable to do so. However, I hear from many parents who say that they are excluded from this process.
“There is still a lot of work to be done but today’s ruling is welcome. We hope this judgment will ensure parents, who of course will in most cases have an intimate knowledge of their children and what is in their best interests, are routinely involved in shaping the future of their children.”
Caroline Hopton has two sons who have been diagnosed with autism.
Oliver, her youngest son, is non-verbal and has sensory and eating problems. Because of his needs he lived in residential care when he was younger, returning home in September 2017 after he was abused by the carers who were supposed to be supporting him. A member of staff was in June 2019 found guilty of “ill-treatment or wilful neglect by a care worker, contrary to Section 20(1) of the Criminal Justice and Courts Act 2015,” and is awaiting sentencing.
Caroline, 56, said: “Many parents find that the current care system is not fit for purpose as they feel that their concerns are often ignored and decisions taken are not in the best interests of the young adult.
“All we want is for decisions to be taken by people who know them best, taking into account their needs and providing the necessary support. Each case should be looked at on its own facts, but in my experience in most cases the best people to make decisions are that young adult’s family, not paid care workers. We hope that the judgment encourages more families to apply to become welfare deputies.”
Lucy and Simon Mottram’s son Oscar, aged 24, has autism and suffers from severe learning difficulties, epilepsy and anaphylaxis.
They joined the campaign after the family faced huge difficulties when Oscar’s care moved from children to adult services within the local authority.
Lucy said: “All our efforts go into ensuring that Oscar feels valued and receives the support he needs to flourish. Our experience is that while others involved in his care may be well intentioned, they do not know him and so cannot make informed decisions as to what is best for him.
“Today’s announcement is a step in the right direction to ensuring correct decisions are made when it comes to the futures of all young people with disabilities.”
Victoria Butler-Cole QC of 39 Essex Chambers acted for the 3 families in this case.
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Alex Rook, the lawyer representing the families, below provides a summary of the case and what the judgment now means for them.
The Judgment in this important case has now been published, and I have tried to summarise the key conclusions below.
The question before the Judge was simply: What is the correct approach to determining whether a welfare deputy should be appointed?
On behalf of the 3 Applicant families, it was submitted that the court should look to the ‘unvarnished’ words of the Mental Capacity Act (MCA) and in particular to consider whether the appointment was in the incapacitated adult’s best interests. It was argued that the Code of Practice as currently drafted should not be relied upon when it states that such appointments should only be made ‘in the most difficult cases.’
After analysing the MCA, the Code and the most relevant case law in great detail, the Mr Justice Hayden, the Vice-President of the Court of Protection, has reached the following conclusions:
1. The Judge agreed with the Applicants fundamental argument that “The starting point in evaluating any application for appointment of a [welfare deputy] is by reference to the clear wording of the MCA 2005” and that accordingly, the wording of the Code of Practice which refers to ‘the most difficult cases’ should not be regarded as the starting point and “requires to be revisited.”
2. The Judge emphasised therefore that there is no statutory bias or presumption against the appointment of a welfare deputy. He states that “to construct an artificial impediment, in practice, to the appointment of a [welfare deputy] would be to fail to have proper regard to the ‘unvarnished words’ of the MCA 2005” and that “It would compromise a fair balancing of the Article 6 and Article 8 Convention Rights which are undoubtedly engaged”
3. That said, he does also state that in his opinion:
“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 interest of P for the Court to appoint a [welfare deputy];”
As a result, whilst the Applicants have succeeded in convincing the court that the correct approach to determining whether a welfare deputy should be appointed requires one to simply look at the wording MCA, and that the Code will therefore need to be amended, the Judge is still of the opinion that even applying this test, a welfare deputy will not be appointed in the majority of cases.
It may be that the Judge’s reasoning behind this is due to an expectation that, as Mr Justice Baker stated in G v E  2512,
“The Act and Code are therefore constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together…. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care.”
The difficulty that the Applicants have with this argument is that whilst this sounds sensible in practice, in reality there remains poor compliance with the MCA from many local and health authorities, and families continue to find themselves either excluded or not properly consulted about best interests decisions regarding their loved ones. This was one of the key conclusions reached by the House of Lords Select Committee when analysing implementation of the MCA in 2014, and the Applicants consider that this criticism remains just as valid 5 years later.
It will be interesting therefore to see whether, now that there is certainty on the law, Mr Justice Hayden’s prediction that deputyship applications will remain rare proves correct, or whether individual applicants will be able to demonstrate that on the facts of their case, it is indeed in their loved one’s best interests for a welfare deputy to be appointed.
The three families in this case will now proceed with their applications, making it clear to the court why they consider it to be in their family member’s best interests that they are appointed as a welfare deputy. They can make their applications knowing that they do not need to convince the court that theirs is ‘one of the most difficult cases’, and to that extent, the case has been a success.