Mental Capacity Case

London Borough of Havering v LD

HHJ Turner QC
[2010] EWHC 3876

Summary: This case, decided by HHJ Turner QC (sitting as a Judge of the High Court), provides useful guidance as to the appointment of a welfare deputy has recently been provided. The court heard extensive submissions on the need for a welfare deputy in a case where a dispute about residence and care for a learning disabled adult had been determined by the court, but where the local authority contended that it should be appointed welfare deputy to deal with ongoing issues such as medical treatment and contact. There was a history of non-engagement by P's mother, who herself had mental health problems. Two social work experts had recommended the appointment of a welfare deputy on the basis of these mental health problems and the need to provide a stable and reliable decision-making framework for P. The experts' view was that a welfare deputy should extend to decisions about medical treatment and social care interventions, and should be indefinite, subject to improvements in the mental health of P's mother.

The court disagreed, and accepted the submissions of the Official Solicitor. It was held that a welfare deputy would be appointed only in extreme circumstances, and that 'mere convenience to a local authority in a legitimate desire to avoid having to come to court' was not relevant. In the instant case, the matters it was proposed the welfare deputy would deal with were either routine and could be dealt with under s.5 MCA 2005, or were serious and would require the court's involvement.

The judge concluded that the evidence was not persuasive that an order appointing the local authority as welfare deputy was needed to ensure that proper and conscientious care was afforded to P.