A test case being described as a “landmark legal challenge” was heard by the Royal Courts of Justice last month. The case was brought by three parents of adult children with learning disabilities; Rose Monckton, Simon Mottram, and Caroline Hopton (“the Campaigning Trio”). The Campaigning Trio, who set up a crowd funding page (for more information click here) to help them bring the case to the Royal Courts of Justice, are campaigning for a change in the law to allow them to continue making decisions about their children’s health and welfare once their children reach the age of 16. They contend that this would be in their children’s best interests rather than allowing other decision makers involved in their care, such as the local authority, the ability to make important decisions about their children often without their involvement or consent.
Why are they campaigning for change?
Ordinarily, if an adult child with a learning disability lacked the requisite mental capacity to make decisions about her welfare, and in order for her parents to take the lead on important decisions, the parents would have to apply for a Health and Welfare Deputyship Order under the Mental Capacity Act 2005 (“MCA”) at the Court of Protection. However, the Code of Practice, which supplements and supports the provisions of the MCA, states that a Health and Welfare Deputy will only be required, and therefore an Order will only be awarded, in the “most difficult cases”. Often, this means that the parents of adult children with learning disabilities are unable to get past the first hurdle of obtaining the permission of the Court to make an application as their case is not deemed to be the “most difficult.”
What constitutes a “difficult” case?
Section 8.38 of the Code of Practice provides various examples of what constitutes a “difficult case,” which in turn includes situations where:
- “a person needs to make a series of linked welfare decision over time, and it would not be beneficial or appropriate to require all those decision to be made by the Court;
- 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 history of serious family dispute that could have a detrimental effect on the person’s future care unless a deputy is appointed to make necessary decisions; and
- the person who lacks capacity is felt to be at risk of serious harm if left in the care of family members.”
The Campaigning Trio are asking for an amendment to the Code of Practice to make it easier for Health and Welfare Deputyship Orders to be granted in cases concerning adult children with learning disabilities, rather than only appointing a Deputy in the “most difficult cases.” They propose that the Court adopts a test “that flows directly from the Act” and for such a Deputy to be appointed within the family as they are the ones who know the person best, and are better placed to make nuanced decisions.
Why is the Court reluctant to make Health and Welfare Deputyship Orders?
Wide powers already exist within section 5 of the MCA allowing any one caring for a vulnerable person to make best interests decisions about their Health and Welfare without incurring criminal liability. However this does not exclude a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act (s.5(3) MCA 2005) . As such, a Deputyship Order for Health and Welfare should be made as a last resort. However, bigger decisions such as the refusal or consent to life sustaining treatment will still require the authority of the Court.
In addition, the Courts are reluctant to interfere with an individual’s freedom of action and an individual’s fundamental right to make her own choices. Section 16(4)(a) of the MCA makes it clear that a decision of the Court is preferred to the appointment of a Deputy to make several decisions. Compliance with section 16(4)(a) of the MCA, especially where Health and Welfare Orders are concerned, can be seen by reference to the Family Court Quarterly Statistics for the year 2018 and by comparing the number of applications made in 2018 for a Health and Welfare Deputy compared to the number of orders granted in the same year. The Family Court Statistics Quarterly for 2018 report that last year out of 992 Health and Welfare applications made for a Deputy to be appointed, only 403 were granted. However, out of 195 “one-off” personal welfare applications made, 441 “one-off” personal welfare Orders were granted thereby outweighing the number of applications made for such Orders. This demonstrates that where Health and Welfare applications are concerned, the Court will prefer making a single determination and a single one-off order rather than granting a Deputy the power to make decisions.
How do I make an application for a Health and Welfare Deputy to be appointed?
Permission is required by the Court and given by a Judge further to considering the following documents filed, and paying the fee of £385:
- COP1 [Application Form]
- COP3 [Mental Capacity Assessment Form]
- COP4 [Declaration by Proposed Deputy]
- COP1B [Supporting Information for Personal Welfare Applications]; and
- COP24 [Witness Statement].
What next?
Watch this space as our deputyship solicitors await the judgment of the legal challenge by the Campaigning Trio.
If you have any questions regarding the topic discussed above please don’t hesitate to contact a member of our Private Client Department, Court of Protection team.