Re JK
Summary: This 'classic' best interests decision on residence, which has recently been publically available, merits note because of the views expressed by District Judge Ralton as to the circumstances under which it would be appropriate to appoint a personal welfare deputy.
The facts of the case and the decision on P's residence are not for these purposes relevant (although they stand as a useful and very practical example of the application of the best interests test contained in s.4 MCA 2005). At the end of the judgment, however, District Judge Ralton gave (at the invitation of the Official Solicitor) a short judgment of the circumstances under which the court might be minded to appoint such a deputy. This was said to be for the benefit of family members in the case should any of them think about applying for such deputyship in the future (the case having, in fact, begun as an application by a family member to be appointed personal welfare deputy for P, although the application was not pursued).
At paragraphs 28ff District Judge Ralton noted as follows:
"28. A Deputy is a decision-maker appointed by the court. The appointment cannot be made unless the court declares that the person for whom the decisions are to be made lacks capacity to make those decisions, and it is in his or her best interests for a decision-maker to be appointed. The ethos of the Mental Capacity Act 2005 as a whole in alignment with Article 8 of the European Convention is for the State to intervene as little as possible. The least interventionist approach is immediately noted by Section 16(4) Mental Capacity Act 2005 which says:
'When deciding whether it is in P's best interests to appoint a Deputy, the court must have regard in addition to the matters mentioned in Section 4 to the principles that (a) a decision by the court is to be preferred to the appointment of a Deputy to make a decision, and (b) the powers conferred on a Deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.'
So, assuming a lack of capacity is established, the first question has to be whether a Deputy is required at all.
29. Section 5 Mental Capacity Act 2005 so far as matters of a personal welfare nature are concerned codifies what is noted as a sort of general defence, so someone has a defence to for example an allegation of assault if the act that was decided upon on P's behalf was done when there was reasonable belief that P lacked capacity and it was in P's best interests for that act to be done. The Code of Practice itself says at para. 8-38 that Deputies for personal welfare decisions will only be required in the most difficult cases where important and necessary actions cannot be carried out without the court's authority or there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions. The most recent case on personal welfare Deputyships is the case of G and E v Manchester City Council and F [2010] EWHC 2512 a decision of the Honourable Mr Justice Baker, and I refer to parts of paras. 56 and 57:
'56. The vast majority of decisions about incapacitated adults are taken by carers and others without any formal authority. That was the position prior to the passing of the Mental Capacity Act under the principle of necessity.
57. 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. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons.'
30.1n the case of JK there was a single issue to be properly determined by the court, which was where should he live, and therefore the appointment of a Deputy to resolve that issue would not have been appropriate in any event. As I read the Act and the Code and the authorities, the place of Deputyship is to fill a legal vacuum when there are a number of non-contentious decisions to be made and as a matter of law someone needs to be given a legal status to make those decisions. When I say as a matter of law, it may be as a matter of essential practicality as well. Appointment of Deputies for the property and financial affairs of incapacitated persons is common because it is difficult to find otherwise a legal status to receive the income and pay the bills. However, whilst each case must always turn on its own facts I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like. The role of resolving such issues must remain with the court of justice.
31. Not mentioned in G v [E], but I think relevant, is Article 8 of the Convention rights because I do think that putting in place a State-appointed decision maker- which is what a Deputy is- is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to envisage how in most cases a Personal Welfare Deputy could ever be so justified."
Comment: District Judge Ralton was not, in fact, correct that the most recent decision on personal welfare deputies was G v E. In the subsequent decision in SBC v PBA and others [2011] EWHC 2580 (Fam), Roderic Wood J considered the words of Para 8.38 of the Code of Practice, and the Official Solicitor's submission that they supported the proposition (accepted by HHJ Turner QC in London Borough of Havering v LD and KD [2010] EWHC 3876 (COP)) that personal welfare deputies should only be appointed in rare cases. Roderic Wood J, however, accepted (at para 67) the rival submission that:
"… [the Court] should look at the unvarnished words of the Statute consistent as that approach is with the contemporaneous practice of interpreting statutory provision and the law in general, but in doing so I can take account of the guidance in the Code in coming to my conclusions. I prefer the analysis of Mr McKendrick on behalf of the applicant and accordingly construe the threshold test for the appointment of a deputy, whilst not failing to keep sight in managing the appointment of the need for any deputy to engage in the collaborative approach which will include collaboration with members of the family as enjoined by Hedley J and Baker J in the cases of Re P (Vulnerable Adult: Deputies) and G v E (above) and in taking into account, as any deputy should, the guidance given in the Code of Practice. My reasons for preferring Mr McKendrick's interpretation are as follows:
(i) the words of the statute are the essential provisions laid down by Parliament;
(ii) whatever its genesis and weight, the Code of Practice is indeed only guidance;
(iii) there is a reasonable expectation in the Code that its provisions should be followed;
(iv) departure from it, if undertaken, should require careful explanation;
(v) as I have said already, it remains essentially guidance - however weighty and significant - and is not the source of the relevant power which is to be found only in the statutory provision;
(vi) in any event, I do not interpret (if I may respectfully says so) the careful and erudite discussion of this issue by Baker J or indeed His Honour Judge Turner QC (quoted above) as advocating a contrary approach."
Whether the judgment in SBA does stand entirely consistently with that in G v E and/or that in LD and KD is a matter that may ultimately need to be revisited by the Courts, but on any view, it is suggested that it is clear - essentially for the reasons outlined by District Judge Ralton - that all significant decisions of principle relating to personal welfare (and, arguably, property and affairs) should be made by the Court rather than by a Deputy. That is, of course, if they should not be taken by way of an assisted decision-making or co-decision-making process of the nature suggested by the Irish Assisted Decision-Making (Capacity) Bill discussed in our August newsletter so as to be compliant with the requirements of the Convention on the Rights of Persons with Disabilities.
