Re HB (Appointment of Personal Welfare Deputy)

In Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960, the Court of Appeal gave authoritative, appellate level guidance, as to the appointment of personal welfare deputies.  In giving the lead judgment, Sir Stephen Cobb, the new President of the Court of Protection, expressly moved away from the approach of the previous Vice-President, Hayden J, in the Lawson case.   At paragraph 63, Sir Stephen indicated that deputyship may well be appropriate in cases involving “some or all of the following features:”

i) The applicant for the PWD stands in some special relationship in relation to P, such as in this case where the applicants are his parents with a special ability to understand and communicate with and for P;

ii) Where P’s wishes and feelings, their beliefs and values and the things which are important to them (see Aintree at §32 above) would be likely to be enhanced by the appointment of a PWD, to make choices for them as an individual human being;

iii) In circumstances in which it is likely that more than one decision will need to be made in the foreseeable future (see the Code at 8.39, Watt and Parr above); a series or “stream” (Parr) of decisions in respect of P is reasonably anticipated;

iv) When P is moving from childhood to adulthood and transitioning between children’s and adult’s services, where it may well be in P’s best interests to have someone acting as his agent for decision-making; transitional difficulties for young adults with lifelong impairments may justify short-term solutions;

v) The appointment may be particularly appropriate where it can be shown (as here) that public bodies have failed, or threaten to fail, properly to apply the MCA 2005 framework, particularly in relation to consultation with families;

vi) Decision-making in the foreseeable future needs to be prompt and agile in order to respond to an evolving set of circumstances.

Importantly, the Court of Appeal also made clear that:

It is important to remember in this case and in others like it that the statutory scheme permits the disclosure and sharing of relevant information about P, as appropriate, where it is in P’s best interests and necessary for meaningful consultation; such a practice is entirely in accordance with the current Code of Practice (see para.16.19-16.23). There are many examples in the post-Lawson caselaw to which we were taken of authorities failing to consider this important information-sharing power under the provisions of sections 4 and 5 MCA 2005 (see for example, Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3), and NHS South East London Integrated Care Board v JP (by his litigation friend, the Official Solicitor) & others [2025] EWCOP 8 (T3), London Borough of Lewisham v SL (by her litigation friend, the Official Solicitor) [2025] EWCOP 51 (T3)). Indeed, in this case the Judge rightly acknowledged this point (see again §21 above: “the system of collaborative decision making … does not always run as the statute intends”). I accept Mr Ruck Keene’s argument that concerns about the failure of this type of information-sharing between professionals and P’s family does not of itself justify the appointment of a deputy; I caution myself against treating deputyship as a mechanism to overcome professional hesitation or institutional risk-aversion. I further accept that appointing a deputy cannot alter the limits of public law decision-making; decisions by public authorities (e.g., as to resource allocation) must remain constrained by public law principles. A PWD cannot compel the creation of options or override resource-based decisions by asserting that a particular course is in the individual’s best interests. (emphasis added)

The latter point can be seen as an (implicit) confirmation that, whatever else the Epsom (Townsend) case means in the context of medical treatment, those exercising functions under the MCA 2005 cannot magic up more in the name of best interests than would be available were the person to have the relevant decision-making authority.

The decision also contains a discussion of the concept of autonomy which – spoiler alert – is not likely to be assistance in deciding whether to appoint a deputy or indeed (we suggest) more broadly in relation to the MCA 2005, given its “inherent elasticity in a range of contexts [which] makes it, in my judgment, an uncertain and inapposite tool” (paragraph 69).  For more on the ethical issues in play here, you may find this book and /or podcast of interest.

We will be keeping a very close eye on whether the judgment leads to the increase in the number of personal welfare deputies that social media ‘chat’ suggests that it is likely to.