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SPOTLIGHT |
A Court of Protection judge has clarified the circumstances in which family members may become personal welfare deputies for people aged over 18, calling for the Code of Practice under the Mental Capacity Act 2005 to be redrafted.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 Hayden J held a combined hearing for the cases of Domenica Lawson, Oscar Mottram and Oliver Hopton, whose parents had crowdfunded the case.
Mr Mottram is 24 and has autism, severe learning disabilities, epilepsy, anaphylaxis and gut problems. He lives in a self-contained flat in his parents' house and requires 24-hour care.
Ms Lawson is also 24 and has Down's Syndrome and a learning disability. She lives in a flat, supported by carers though spends much of her time with her parents.
The judge said Mr Hopton is aged 20 and has a diagnosis of severe autism, requiring constant supervision and support with everyday activities and lives with his mother and brother as he suffered assault and mistreatment in two residential placements.
The parents wish to have a family member appointed as a personal welfare deputy. However, the MCA states that decisions on behalf of adults should be taken collectively by everyone interested in their welfare, and the Code of Practice says that personal welfare deputies should only be appointed in ‘the most difficult cases’.
Law firm Irwin Mitchell, which acted for the applicants, said it was argued during the case that the families were ignored and decisions were taken without them being consulted. It was also claimed that these decisions were frequently 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.
Mr Justice Hayden said he did not accept the primary submission of the applicants that the current case law was 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."
However, the judge said the wording of the MCA Code of Practice at paragraph 8.38 was “reflective of likely outcome and should not be regarded as the starting point” and its wording “requires to be revisited”.
The paragraph states: “Deputies for personal welfare decisions will only be required in the most difficult cases where:
Hayden J set out a number of clear principles:
Law firm Irwin Mitchell, which acted for the families, said the outcome meant their clients had been “given hope”.
Partner Alex Rook said: “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.”
He added that the families hoped - now that Hayden J had decided that the code needs to be redrafted, making it clear that there is no presumption against them being personal welfare deputies - it would make it more common for family members to be appointed as personal welfare deputies.
Rook said that the three families in this case would 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 personal 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," he said.