Judge: Baker J
Citation:  EWHC 2512
Summary: There have been two recent judgments concerning the appointment of welfare deputies which expressed different views as to their appropriateness (Re P  EWHC 1592 (Fam) and Havering LBC v LD and KD (unreported, 25 June 2010)) (both covered in previous updates).
The issue has been considered again by Baker J in the ongoing case of G v E. The judge agreed with the decision in LBC v LD and KD and found that the scheme of the MCA 2005 was such that decisions should ordinarily be taken by those looking after and responsible for incapacitated adults, with particularly grave decisions or issues which are the subject of dispute being resolved by the courts. The appointment of a deputy, which entailed giving one person a protected position regarding decision-making, was not appropriate except in limited circumstances, notably those identified in the MCA Code of Practice. These include cases where P is at risk of harm from family members or there is a long history of disputes, or where P has substantial financial assets which require regular management.
On the facts of the case, Baker J refused to appoint E’s carers as either welfare deputy or property and financial affairs deputy. Routine decisions about E’s care and treatment would be taken by his carer. If disagreement on significant issues arose, such as who should care for E in the event F was no longer able to, decisions would have to be taken collaboratively, or with the court’s assistance if necessary:
On the facts of this case, Baker J found the application for the appointment of F and G as personal welfare deputies to be misconceived. The routine decisions concerning E’s day-to-day care, including decisions about holidays and respite care could be taken by F as his carer. Decisions about his education should be taken collaboratively by F, G, his teacher, and other relevant professionals. Decisions about possible medical treatment should be taken by his treating clinicians, who will doubtless consult both F and G and others as appropriate. He found that, were there to be any disagreement about any of these matters, an application could be made to the Court of Protection. Decisions about who should look after E in the event that F is no longer able to do so should equally be considered (when the need arises) in a collaborative way and only referred to the court for endorsement if required or if there is any disagreement. Baker J concluded that that issue was for the very long term and it would be wholly inappropriate to appoint a deputy or deputies now to make that decision.
Comment: The upshot of this decision, and that in LBC v LD and KD is that the appointment of welfare deputies is likely to be very rare, and local authorities or family members who wish to seek such an appointment will have to consider their positions very carefully.
It is important, in the view of the authors, that one of the central reasons a welfare deputy was not required in G v E was that the judge considered that E’s carers could make routine decisions about such matters as holidays and respite care. Often the motivation for an application to be welfare deputy, whether by a local authority or a family member, is the belief that the other is obstructive or is likely to make the wrong decision. It is only when the court clarifies the identity of the ‘lead’ decision maker, as Baker J did in this case, that such concerns can be dealt with. It seems to the authors that it can be drawn from the judgment of Baker J that where P is not at risk of harm from his family members, the assumption is that his family will take the lead in routine decision-making, albeit collaboratively with relevant professionals. Where there is a risk of harm because of the decisions made by P’s carers or family, it may be that the local authority has to take the lead to protect P. In this case, the court’s approval of particular decisions will be required and is likely to be preferred to the granting of a welfare deputyship.
The case also dealt with G’s application to be made litigation friend for E in place of the Official Solicitor. The application was refused, since G’s criticisms of the OS’s conduct were without merit, G herself was not sufficiently objective, and the Official Solicitor was not litigation friend of last resort. It remains to be seen whether the Official Solicitor will agree with the last of those reasons.