Parr v Cheshire East Council & Anor

Summary

This case concerned an application by Alison Parr, the mother of an 18 year old to be appointed as welfare deputy for her daughter, Ruby.  Ruby lived with her mother and two siblings, with her mother being her lead carer and the person co-ordinating Ruby’s care package. Ruby had a severe learning disability and multiple serious health problems including intractable epilepsy, and was on long term ventilation and was fed by PEG. Her mother’s application had been rejected on the papers (as is common) but on reconsideration, Poole J granted the deputyship order and permitted the family to be named.  Poole J noted that Ruby’s mother was “highly attuned to her daughter’s needs, always acts in in what she considers to be Ruby’s best interests, and is extremely well placed to assess what those best interests are, including in medical emergencies and when making decisions about her residence and care.” Moreover, Poole J accepted that there had been times when it would have been positively advantageous to Ruby for her mother to be welfare deputy, because her status as deputy would mean that her views were not at risk of being sidelined by professionals who did not have the same background knowledge and experience of Ruby, and information about Ruby would not wrongly be withheld from her.   Poole J accepted that there would be ‘countless’ health and welfare decisions to be made daily for Ruby and that there would be important one-off decisions too, such as whether she should move to a unit run by a specialist care provider. Poole J applied the decision of Hayden in Lawson, Mottram and Hopton [2019] EWCOP 22 but, reflecting the reality that best interests decisions would always have to be made for Ruby, noted that “put bluntly, someone with Ruby’s level of cognitive functioning will never have capacity to make any decisions about her personal welfare other than at a very rudimentary level. She might express a dislike of a particular experience or enjoyment of another, but she cannot, and never will be able to, understand consequences of decisions such as where to live, what care package is best for her, or whether she should have a particular medical intervention or an admission to hospital. Appointment of a deputy would not take away autonomy from Ruby because she cannot exercise autonomy in relation to anything except the most basic activities and needs. I would not view the appointment as being restrictive of Ruby’s freedom or right to self-determination.”

Poole J further noted that there was no conflict of views with the family or with professionals about her mother being an appropriate welfare deputy, and that as she was the person ‘most in tune with Ruby’s wishes and feelings’ and ‘most committed to ensuring that Ruby’s best interests are met’ it was appropriate to appoint her as deputy: “[n]aturally, not all adults without capacity and with severe disabilities, who have significant daily care needs, need a PWD. But Ruby’s particular history and circumstances, combined with her likely change of residence and therefore carers, mean that a constant voice in decision-making will be to her advantage.”

Comment[1]

Although Poole J was keen to stress that welfare deputies will not be required “in most cases,” the factors relied on in this judgment will be familiar to many other families of disabled young people. Many will be able to point to a series of decisions that need to be made, the sidelining of their input once their son or daughter turns 18, failures to implement the MCA properly, and the value of ensuring that the people with comprehensive background knowledge of P must be involved in decisions about them, particularly where social workers and care staff are frequently replaced. The judgment also helpfully adopts a realistic approach to whether a deputyship order is more restrictive than professionals relying on s.5 MCA to make best interests decisions – both result in the person having decisions made for them, and both require the decision-maker to act in P’s best interests and only where they lack capacity.

The court’s recognition that third parties often want to see evidence of an LPA or deputyship before sharing information about P with the parent of a disabled adult ties reflects wider experience.  For example, the gov.uk guidance page entitled ‘Medical disclosure information to attorneys and deputies’ does not say anything about being able to disclose such information to a person who is not a deputy or attorney in reliance on s.5 MCA, and says that “There are no specific statutory provisions enabling a third party to exercise subject access rights on behalf of an individual who does not have the mental capacity to manage their own affairs, but the Information Commissioner’s Office advises that “it is reasonable to assume that an attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority’.”

[1] For more commentary on this case, see Alex’s post about it on his website here.