HB (Appointment of Personal Welfare Deputy), Re [2026] EWCA Civ 960

[2026] EWCA Civ 960Case No CA-2026-001043
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
HHJ BECKLEY
COP 14181429; [2026] EWCOP 12 (T2)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/07/2026
Before
SIR STEPHEN COBB(President of the Family Division and of the Court of Protection)LADY JUSTICE KINGLORD JUSTICE NUGEE
Between
JB & SBAppellantsOfficial SolicitorRespondentThe Public GuardianIntervener
Re HB (Appointment of Personal Welfare Deputy)
Stephen Broach KC and Francesca P. Gardner (instructed by Rook Irwin Sweeney LLP) for Appellants, JB & SBAlex Ruck Keene KC (Hon)(instructed by Official Solicitor) as Advocate to the CourtRuth Hughes KC (instructed by the Office of the Public Guardian) for Public Guardian as IntervenerHearing Hearing date : 17 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 24 JULY 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Sir Stephen Cobb, President of the Family Division and President of the Court of Protection:

[1]The Mental Capacity Act 2005 (“MCA 2005”) empowers the Court of Protection to appoint a deputy to make decisions on behalf of a person who lacks capacity (‘P’), both in relation to P’s property and affairs and in relation to P’s personal welfare. This appeal concerns the court’s latter power, exercised under s.16(2)(b) MCA 2005, to appoint a Personal Welfare Deputy (‘PWD’); we have considered, in particular, the circumstances in which that power ought to be exercised.[2]At the heart of the appeal is a young man who I shall refer to as HB; he is currently 22 years old. He has a severe learning disability, is autistic, and is non-verbal. There is no dispute that he lacks capacity in very many areas of his life, including decision-making concerning his personal welfare.[3]The Appellants are HB’s parents, JB (father) and SB (mother). In June 2025, JB and SB applied to be PWDs for their son, jointly and severally; they did so with the express support of the school where HB had spent many years, the chief executive officer of a national autism charity who knew him, and HB’s aunt; the relevant local authority which commissions his care was neutral on the application. There was no opposition to the application. The application was determined without a hearing, on a consideration of the documents, as is permitted under rule 3.6(4) of the Court of Protection Rules 2017 (‘COPR 2017’) by HHJ Beckley (‘the Judge’); he refused the application. The Appellants sought a reconsideration of that decision (under rule 13.4 COPR 2017), and this was listed for an oral hearing earlier this year. A few days before that listed hearing, Poole J handed down judgment in Parr v Cheshire East Council & another [2026] EWCOP 1 (T3) (‘Parr’). Following the hearing in this case, the Judge reserved judgment, and for the reasons set out in his judgment reported at [2026] EWCOP 12 (T2)he again refused that application.[4]It is against that refusal that the Appellants now appeal. Given that the Judge acknowledged that he had reached a conclusion which conflicted with the conclusion reached by Poole J in Parr on materially similar facts he granted permission to appeal. By subsequent direction of Mrs Justice Theis (Vice President of the Court of Protection), and in accordance with paragraph 3.4 of Practice Direction (‘PD’) 20B COPR 2017, the appeal was reallocated for determination by the Court of Appeal. On 22 May 2025, King LJ requested the Official Solicitor to act as Advocate to the Court, an invitation which she accepted. By later order (3 June 2026) the Public Guardian was joined as an intervener to the appeal, given its statutory functions; these functions include “establishing and maintaining a register of orders appointing deputies” and “supervising deputies appointed by the court” (section 58 (1)(b)/(c) MCA 2005) (and see further §12 below).[5]We have received detailed written and oral submissions of leading and junior counsel for the Appellants, leading counsel for the Official Solicitor as Advocate to the Court, and leading counsel for the Public Guardian.[6]For the reasons set out herein, I conclude that the Judge was wrong to refuse this application by JB and SB for PWD orders in respect of their son; I would accordingly allow the appeal. I would propose to grant the application of the Appellants; I am satisfied on the material presented to this court (which was in all material respects the same as that before the Judge) that they should, jointly and severally, be enabled to exercise the role of PWD in respect of a wide range of care and welfare issues (broadly as sought by them: see §19 below), subject to the conditions and restrictions as they are set out in the MCA 2005, for the foreseeable future. On this appeal we have not received detailed submissions on the precise scope and/or, more specifically, the duration of any deputyship order; I note that the Public Guardian supports the grant of time-bound PWD orders generally (see §9 below: “…especially beneficial in cases where the protected person is a young adult”). I would therefore propose to direct that the Appellants’ application be remitted to a Tier 2 judge of the Court of Protection (to be allocated by the senior Court of Protection Judge) for determination of those particular issues.

Deputyship

[7]As earlier indicated, section 16(2)(b) MCA 2005 contains the court’s power to make a deputyship order in relation to “a matter or matters” concerning P's personal welfare, or P's property and affairs (section 16(1)(a)/(b) ibid.).[8]There are considerably more property and affairs deputyships than personal welfare deputyships, although the number of personal welfare deputyships is steadily increasing; 95% of personal welfare deputyships are held by lay family members, who are usually not permitted to charge for deputyship services. In 2025, the Office of the Public Guardian (‘OPG’) received over 12,500 deputyship orders relating to property and affairs, compared with just 174 concerning personal welfare; these figures, and other statistics in this section of the judgment, are taken from a witness statement filed with the court on behalf of the Public Guardian, from Sara O’Byrne the Chief Operating Officer of the OPG. The reason is clear; no use may be made of P’s finances whatsoever without authority, and there is no comparable provision to section 5 MCA 2005 in relation to property and affairs decisions, whereas a wide range of ordinary welfare decisions can informally and collaboratively be made without the need for explicit authority, and can be made with the protection of section 5 ibid.[9]The personal welfare deputyship orders tend to last longer (i.e., over 7 years) than property and affairs orders (about 5.5 years); it seems likely that many personal welfare deputyships continue without active reassessment of their necessity. That is difficult to reconcile with the requirement of necessity, and supports the concern expressed in the caselaw that such orders must not be allowed to persist by default rather than justification. A passage from Ms O’Byrne’s statement addresses this point, and is (or may be) of particular interest to the facts of this case: “OPG considers that the issue of time bound deputyship orders would ensure that the ongoing requirement for a deputyship order is reviewed by the Court of Protection. OPG considers that this would be especially beneficial in cases where the protected person is a young adult, and their parents may have obtained a personal welfare order at a time when the person subject to the order is transitioning from child to adult social services which some parents find challenging to navigate”.[10]The MCA 2005 contains an indicative list of the powers which the Court of Protection may authorise a deputy to exercise in relation to P’s personal welfare (section 17 ibid.); these include deciding where P lives, what contact they have with others, and giving or refusing consent to healthcare treatment. The power to give or refuse consent to healthcare treatment is subject to restrictions; for example, a PWD has no power to direct a person responsible for P’s health care to allow a different person to take over that responsibility, nor do they have the power to refuse consent for P to have life-sustaining treatment (section 20 ibid.). Deputies (either for property and affairs or welfare) are treated as if they act as P’s agent in relation to anything done or decided by them within the scope of their appointment, and in accordance with the MCA 2005 (section 19(6) ibid.). PWDs may only act in respect of matters in respect of which P lacks capacity, and must always act in P’s best interests, exercising their powers in the least restrictive manner. Separate specific statutory provisions address the PWDs’ authority to restrain P, but these are not relevant to the instant facts.[11]There is no limit on the number of deputies who may be appointed in respect of P and they may act jointly, or jointly and severally; their appointment by the court can be limited both in duration and scope (see above). PWDs are required to complete an annual report outlining any decisions they have taken over the last reporting period. Annual reports are subject to review by the personal welfare supervision team within the OPG, and any concerns or questions are followed up with the deputy. Where appropriate, the Court of Protection retains the power to make a best interests decision for P in place of the PWD, even where the PWD has the authority to make that decision and is willing and able to make it (see HHJ Hilder’s obiter remarks in Re XY [2025] EWCOP 55 (T2) (‘XY’) at [79] with which I agree).[12]The OPG exercises a number of functions laid out in statute; it establishes and maintains a register of orders appointing deputies, it supervises deputies, and deals with representations (including complaints) about the way in which a deputy is exercising his/her powers (see generally section 58 MCA 2005). The OPG does not typically participate in the application for a deputyship order, does not routinely see the underlying evidential material, and is therefore not in a position to assess the appropriateness or necessity of the original order once made. In those circumstances, it follows that the burden of ensuring necessity and proportionality lies squarely with the court at the outset. There is limited scope for subsequent supervisory mechanisms to correct an order that was unnecessary or excessively broad when made. The evidence demonstrates that OPG supervision is necessarily limited in scope and largely reactive in nature, relying upon periodic visits and annual reports submitted by the deputy.[13]Finally, it is appropriate to note that the Court of Protection retains the power under section 16(7) and (8) of the MCA 2005 to revoke the appointment of a deputy or to vary the powers conferred upon him. This constitutes an important reserve jurisdiction, available to ensure that the exercise of deputyships remains within the limits of the authority granted by the court and directed at all times to the promotion of P's best interests.

Background facts

[14]HB is the youngest of four children of the Appellants; he was born in London. When he was aged two, he was diagnosed with autism, ADHD, and oppositional defiant disorder; more recently, HB has been diagnosed with epilepsy, and he has suffered a number of reasonably significant seizures. HB is non-verbal; he has a significant feeding and eating disorder and is incontinent. HB’s needs are complex and unique; they are carefully managed and planned for with familiar routines carried out by carers who know HB well, and who understand his signals. HB can be violent, particularly towards himself, and has inflicted damage to himself over the years. HB requires 1:1 support during the day and waking night supervision; sometimes HB requires 2:1 support to calm him down. He also requires 2:1 support whilst out in the community. Although HB is non-verbal, his parents have learned his cues and his particular manner of communication. SB has observed: “HB’s needs are so complex that it is not possible for local authority, medical and therapeutic professionals to keep a close day-to-day eye on HB’s welfare and any changes that occur, nor is it possible for them to attend all meetings that are necessary for HB’s complex needs and interrelated health and care issues. In our experience there is a significant turnover of professionals in all areas of HB’s life. Professionals come and go without warning, and it takes a long time for any new professional to become attuned to HB’s needs and his unique way of communicating. Additionally, HB really struggles with change and transitions, and he needs consistent, predictable support from the people in his life. JB and I will therefore always need to co-ordinate and manage the views of the professionals involved, as otherwise there is a risk that HB’s needs are not met and his wishes are not understood”.[15]In his early childhood HB resided with his family; special adjustments were made to the family home, and careful arrangements were devised to ensure that he was not over-stimulated. When he was nine years old, HB moved to residential school, Oakridge School (not its real name) in Berkshire; funding for this placement was only secured following considerable efforts by the Appellants (see below). The Appellants and siblings moved home in order to live close to him. HB remained at Oakridge School until he was eighteen, when he transitioned to adult services; at that point he moved to Bryn Glas College (not its real name), a residential college placement in South Wales. In July 2025, his parents and siblings moved home again to live close to him. The relevant Education, Health and Care Plan (‘EHCP’) is currently commissioned by the London Borough of Hillingdon (‘Hillingdon’) which then had responsibility for HB from when he lived in that area as a young child. Hillingdon has recently indicated its intention to cease funding the EHCP, and there are pressing issues around the responsibility for funding of HB’s care. It had been expected that HB would remain at Bryn Glas until at least 2027, but that is now in doubt. It is yet to be determined whether the authority in which Bryn Glas is situated will accept responsibility for HB’s social care, and his EHCP; that authority has not yet declared its hand.[16]In their evidence before the Judge, JB and SB described the difficulties which they had encountered in dealing with statutory bodies in relation to HB’s personal welfare, albeit this mainly related to the period when HB was still under eighteen years old (see [J20] All references to paragraphs in the Judge’s judgment are identified by [J*]. ). An important passage from SB’s statement describing the challenges which they had encountered in securing appropriate educational provision for HB when he was nine years old is illustrative of the wider battles which they have fought in securing appropriate provision for him over the years: “Despite extensive attempts at negotiation and presenting evidence to the local authority which demonstrated why [Oakridge School] was the right option, the only reason that the local authority accepted it was because we issued a formal appeal challenging its decision (and it still took them around 6 months to agree). It then took them even longer to agree to a 52-week placement rather than a term-time only placement. Sadly, in HB’s case, I believe that the local authority prioritised cost savings above HB’s best interests, and as a result he spent a number of months without education and care that met his needs. We do not feel as though this was a collaborative process in which the views of everyone who was interested in HB’s welfare were properly taken into account. It is not unreasonable to conclude that further similar decisions may be taken by the local authority that are not properly informed by the collaborative best interests decision making process”.[17]The Judge referred to the fact that JB and SB had been forced to appeal against the schooling decision to the Special Educational Needs Tribunal ([J21]), recording that the appeal was compromised only at the very last minute when the authority capitulated both as to the identity of the actual placement and the nature of the care provision (i.e., full-time / 52 week). They had further difficulties in identifying and then securing a place at Bryn Glas; after some delay, Hillingdon had proposed an option which, objectively viewed, was unsuitable for HB. It was only through the perseverance of the Appellants that Bryn Glas was secured ([J22]). The Appellants are unsure if there is currently an allocated social worker for HB and have further referred to the lack of consultation with them by care providers and medical and dental practitioners on a range of important issues. It seems likely that a range of decisions will be required with regard to the management of the relatively recently diagnosed condition of epilepsy.[18]The Appellants are “loving and caring” ([J2]) parents, “completely committed” to HB ([J32]), understanding of him, and capable of working collaboratively with professionals. They have gone the extra mile and beyond to enable HB to live his best life. The Judge reflected that “HB could not have wished for better parents” ([J31]), who are already HB’s deputies for property and financial affairs; the Judge further observed: “[J2] JB and SB's care for and commitment to HB is clearly demonstrated by the fact they have moved house twice, firstly to Berkshire and latterly to south Wales so they can be close to and have very regular contact with him. In my view, no parents could have done more for their child than JB and SB have done for HB. He is fortunate to have JB and SB as his parents and to receive their love and support”.[19]When they applied for appointment as PWDs on 5 June 2025 the Appellants specifically sought authority to deal with a range of matters; their proposal largely followed the standard template order which has been more or less the same since the implementation of the MCA 2005: i) Consenting to medical and/or dental examination and treatment on his behalf; ii) Choosing where and with whom he should live, in accordance with section 4 of the MCA 2005, limited to choosing from available options from any public authority; iii) The provision of care services; iv) Matters of day-to-day care, including diet and dress; v) Whether he should take part in work placement opportunities, leisure or social activities; and vi) Making and conducting complaints about his care or treatment. It is right to reflect that their ambitions rightly did not, and do not, extend to exercising “the full gamut of decision-making power, let alone parental responsibility” over their son (Baroness Hale in N v. ACCG & Ors [2017] UKSC 22 at [27]); the MCA 2005 does not contemplate this “as a norm”.

The Judgment

[20]The judgment is concise, and is appropriately focused on the issues. The Judge briefly rehearsed the background facts; he made a number of factual findings ([J1]-[J11]). He addressed the law, specifically referencing section 1 and 16 of the MCA 2005, particularly highlighting section 16(4) ibid. He cited the judgment of Hayden J (former Vice President of the Court of Protection) in Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] 1 WLR 5164 (‘Lawson’), quoting at length from [53] ibid. I discuss Lawson later (see §35 below). The Judge then considered Poole J’s judgment in Parr (see [J15]), especially Poole J’s comments at [37] and [40].[21]In his discussion of the issues specifically relevant to the deputyship application, the Judge turned first ([J17]) to what he described as HB’s “right to respect” for his “autonomy”. He went on to address the combined effect of sections 4 and 5 of the MCA 2005 describing these neighbouring provisions as supporting “a system of collaborative and informal decision-making”, albeit (as he recognised) not always running in this case “as the statute intends” ([J19]). He recognised that, deputyship aside, JB and SB would need to be (and would be entitled to be) consulted on all welfare decisions relevant to HB:
“[J18]… It seems to me virtually impossible that any best interests decision maker could claim that it is not practicable and appropriate to consult JB and SB given their love for and knowledge of HB and the fact that they have twice moved house to be close to where he is living”
. He added that in relation to dental treatment (which had been problematic for HB) any “dental surgeon would be bound to consult JB and SB” under section 4 MCA 2005 ([J24]). He continued at [J25]-[J28]: “[J25] … the examples given by JB and SB demonstrate how collaborative decision-making can work and has worked in HB’s best interests. Often it isn’t simple and straightforward, but when decision makers have taken JB and SB’s views into account (as section 4 MCA says they must), along with their own professional knowledge and experience the right decisions appear to have been made. [J26] JB and SB seek authority to make day to day decisions including as to diet, dress, leisure and social activities. As I suggested to JB and SB in the hearing, that cannot be practical. The person at BC who is deciding whether HB should wear his big coat or a light jacket, eat a curry or a jacket potato or watch the TV or walk outside (assuming for this judgement that HB lacks capacity to make those decisions himself) cannot realistically be expected to contact JB and SB who, if they were PWDs, would have the authority to make those decisions on HB’s behalf. In my view, those ongoing, day to day decisions are ones that Parliament intended to be made with the protection of section 5 MCA. [J27] JB and SB accept that they would only be able to choose between available options offered by statutory bodies. PWDs, like Court of Protection judges, cannot compel a statutory body to create or, in particular, pay for a favoured option. JB and SB submit that as PWDs they would be able to lead on the process of decision making and gather information. They describe instances of a complete absence of discussion or planning before decisions have to be made. I am afraid that I don’t consider that the appointment of PWDs would overcome such difficulties which commonly arise because of the very great pressures on statutory bodies. [J28] It seems that HB may have to move on from [Bryn Glas] in July 2026 when his current placement comes to an end. This is obviously an issue of great concern for JB and SB. They are concerned that the local authority isn’t taking the necessary active steps to source available options, which could perhaps include an extension of HB’s stay at [Bryn Glas]. It is the decision as to where HB should live, deciding between available options, that they consider to be the most important decision that they would and should be able to make as PWD”.[22]In drawing this section to a conclusion, the Judge observed that if there was a dispute between the Appellants and the local authority provider on an “issue as important as residence”, then section 16(4)(a) MCA 2005 makes clear that “a decision of the court is to be preferred to the appointment of PWDs to make the decision” ([J29]). He concluded: “[J31] I do not find it to be in HB’s best interests to appoint JB and SB as PWDs for HB. I find that collaborative decision making has worked in his best interests. I consider that if there are disagreements over major decisions, such as residence, the Court of Protection should resolve those disagreements rather than PWDs. I consider that the appointment of PWDs would be an unnecessary infringement of HB’s right to autonomy as a 22-year-old adult”.[23]The Judge was clear that going forward many decisions would need to be made for HB, which would be better made “collaboratively” than by PWDs ([J33]). His decision was expressed to be in HB’s best interests ([J34]) and he was not persuaded by the similarity with Parr ([J35]).

The law

[24]Section 16 MCA 2005 contemplates that the Court of Protection may, by making an order, “make the decision or decisions on P’s behalf in relation to the matter or matters” (section 16(2)(a) MCA 2005). In the alternative, section 16(2)(b) MCA 2005 vests in the Court of Protection the power to “appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or matters”. The “matter or matters” could relate to “personal welfare” (section 16(1)(a)) or “property and affairs” (section 16(1)(b)). The ordering of these statutory provisions suggests that pre-eminence is given to decisions being made by the court.[25]Section 16(3)-(6) MCA 2005 are important to this appeal, and read (in full) as follows: “(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests). (4) 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”. (5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2). (6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the court for an order, directions or an appointment on those terms”. (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”.[26]Section 17 describes the range of powers relevant to section 16: “(1) The powers under section 16 as respects P’s personal welfare extend in particular to –(a) deciding where P is to live;(b) deciding what contact, if any, P is to have with any specified persons;(c) making an order prohibiting a named person from having contact with P;(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility. (2) Subsection (1) is subject to section 20 (restrictions on deputies)”. (a) deciding where P is to live; (b) deciding what contact, if any, P is to have with any specified persons; (c) making an order prohibiting a named person from having contact with P; (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; (e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.[27]Of the ancillary statutory provisions relevant to the issue before the court, it is notable that “a deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment” (section 19(6) MCA 2005). The restrictions in section 20 MCA 2005 include: “(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter. (2) Nothing in section 16(5) or 17 permits a deputy to be given power –(a) to prohibit a named person from having contact with P;(b) to direct a person responsible for P’s health care to allow a different person to take over that responsibility. … (6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests)”. (a) to prohibit a named person from having contact with P; (b) to direct a person responsible for P’s health care to allow a different person to take over that responsibility.[28]Other provisions in the MCA 2005 may be seen as limiting the scope of decision-making: see sections 27 to 29 ibid. which provide that “Nothing in this Act permits…” or “Nothing in this Act authorises…”; this is followed by a list of twelve potential issues. The Court of Protection cannot make these decisions on behalf of P; nor can a deputy.[29]It will be noted that the power to appoint a deputy and the exercise of authority of that deputy are expressly governed by the same considerations, namely section 1 of the MCA 2005 (the principles) and section 4 (best interests): see section 16(3) and section 20(6) MCA 2005 respectively.[30]It is unnecessary for me to set out in full the suite of well-known principles in section 1 MCA 2005. For the purposes of this appeal, I draw attention to section 1(3) ibid., which provides that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”; I further draw attention to section 1(5) ibid. which provides that any act done or decision made by a deputy for or on behalf of a person who lacks capacity has to be done, or made, in his best interests. Notably, section 1(6) MCA 2005 provides “Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”.[31]From the ‘best interests’ section (section 4 ibid.), it is appropriate for me to highlight in this appeal the requirement on the person making the determination of P’s best interests (whether that be, for instance, the judge in the Court of Protection, the deputy, or provider of services) to take into account “all the relevant circumstances” (section 4(2) ibid.), and: “(6) He must consider, so far as is reasonably ascertainable –(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if he had capacity, and(c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of – (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and(d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6)”. (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.

(d) any deputy appointed for the person by the court,

[32]Although I deal with the caselaw in more detail below, it is helpful to consider here the comments of Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 (‘Aintree’) at [45] on the impact of section 4(6) MCA 2005: “The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. … insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being”.[33]Finally, for present purposes, it is necessary to consider section 5 MCA 2005: “(1) If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if -(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and(b) when doing the act, D reasonably believes— (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best interests for the act to be done. (2) D does not incur any liability in relation to the act that he would not have incurred if P – (a) had had capacity to consent in relation to the matter, and (b) had consented to D’s doing the act. (3) Nothing in this section excludes a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act. (4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment)”. (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes— (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best interests for the act to be done. (a) had had capacity to consent in relation to the matter, and (b) had consented to D’s doing the act.[34]The operation of the MCA 2005 in this respect is supported the Mental Capacity Code of Practice (2007). Regrettably, the Code is now out of date; indeed, as counsel before us acknowledged, it has been out of date for some time. Paragraph 8.38 This reads: “8.38 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”. of the Code of Practice (which is cited in Lawson) is acknowledged now to be plain wrong. A 2022 joint Ministry of Justice / Department of Health and Social Care consultation on changes to the Code produced a draft amended code which does not replicate paragraph 8.38; the relevant terms of the proposed draft code emphasises the guiding lodestar of best interests, and goes on expressly to provide at paragraph 9.14 that: “The court will also consider whether there is evidence that the collaborative decision-making process set out in section 5 of the Act has not been working in the person’s interests. This could include situations such as: … ongoing decisions on behalf of the person relating to the planning and implementation of a publicly funded care package, where this is clear evidence that a family member who is well-placed to advocate their wishes and feelings and make decisions on their behalf has not been appropriately consulted”.[29]Although paragraph 8.38 of the Code is no longer regarded as sound in law, counsel submitted that paragraph 8.39 (which provides examples of when a PWD may be required) is essentially sound; this materially includes the following: “… where someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court. For example, someone (such as a family carer) who is close to a person with profound and multiple learning disabilities, or where the most appropriate way to act in the person’s best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions”. (Emphasis by underlining added).[35]I turn now to the caselaw in this area.[36]There are no relevant appellate decisions. I start with Hayden J’s judgment in Lawson. In that case, Hayden J specifically considered the question: ‘What is the correct approach to determining whether a welfare deputy should be appointed?’ ([2]) before going on to conduct a careful and thorough review of the statute law, caselaw and the Codes of Practice. At [30]-[32], he quoted important extracts from the judgment of Baker J (as he then was) in G v E (Deputyship and Litigation Friend) [2011] 1 FLR 1652 (‘G v E’) (to which I return later). At the conclusion of his judgment, in a lengthy passage at [53], Hayden J summarised the principles which he regarded as applicable to the appointment of a PWD. Save as outlined in the sub-paragraphs which follow, I do not regard Hayden J’s remarks in Lawson at [53] as reflective of the modern law or practice in this regard; the following passages from [53] remain useful: i) The starting point in evaluating any application for appointment of a PWD is by reference to the clear wording of the MCA 2005 ([53(a)]); ii) Whilst there is no special alchemy that confers adulthood on a child on his or her 18th birthday, it nevertheless marks a transition to an altered legal status, which carries both rights and responsibilities. … The young person who may lack capacity in key areas of decision making remains every bit as entitled to this respect as his capacitous coeval. These are fundamental rights which infuse the MCA 2005 and are intrinsic to its philosophy … ([53(b)]); iii) To construct an artificial impediment, in practice, to the appointment of a PWD would be to fail to have proper regard to the ‘unvarnished words’ of the MCA 2005 (PBA v SBC [2011] EWHC 2580) (Fam). It would compromise a fair balancing of the Article 6 and Article 8 Convention Rights which are undoubtedly engaged ([53(e)]); iv) The prevailing ethos of the MCA 2005 is to weigh and balance the many competing factors that will illuminate decision making. It is that same rationale that will be applied to the decision to appoint a PWD ([53(g)]); v) P’s wishes and feelings and those other factors contemplated by section 4(6) MCA 2005 will, where they can be reasonably ascertained, require to be considered. None is determinative and the weight to be applied will vary from case to case in determining where P’s best interests lie (PW v Chelsea and Westminster Hospital NHS Foundation Trust and Others [2018] EWCA Civ 1067) ([53(i)]).[37]I return to the judgment of Baker J in G v E in which he said this: “[57] … 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. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care. This case is an example of what can go wrong when people do not work together. Where there is disagreement about the appropriate care and treatment, (which cannot be resolved by the methods suggested in Chapter 15) or the issue is a matter of particular gravity or difficulty, the Act and Code provide that the issue should usually be determined by the court. The complexity and/or seriousness of such issues are likely to require a forensic process and formal adjudication by an experienced tribunal. [58] To my mind, section 16(4) is entirely consistent with this scheme. Manifestly, it will usually be the case that decisions about complex and serious issues are taken by a court rather than any individual. In certain cases, as explained in paragraphs 8.38 and 8.39 of the Code, it will be more appropriate to appoint a deputy or deputies to make these decisions. But because it is important that such decisions should wherever possible be taken collaboratively and informally, the appointments must be as limited in scope and duration as is reasonably practicable in the circumstances. [59] Clearly, practicalities will be an important consideration in determining an application for the appointment of a deputy. As the examples in paragraphs 8.38 and 8.39 demonstrate, it is sometimes impracticable to insist on decisions being taken by the court. The instances which stand out are those which involve a series of decisions (for example, about medical procedures) and where the assets of an incapacitated adult are of a magnitude that requires regular management. Common sense suggests that the second of these examples is likely to arise more frequently than the first, and that the appointment of deputies is likely to be more common for property and affairs than for personal welfare”.[38]We were referred to a number of other cases including: Watt v ABC [2017] 4 WLR 24 (‘Watt’): Re CB [2021] EWCOP 43 (‘CB’) and XY (citation above). There is an important passage in Watt, in which Charles J (then Vice President of the Court of Protection) discussed the appropriateness of a PWD order in a case involving a series of decisions in respect of P, describing the operation of section 16(4) MCA 2005 in these terms: “…all that [section 16(4)] does is to add factors that the COP is to take into account and weigh in reaching its decision. So those particularised factors have to be weighed against factors that would favour the appointment of a deputy rather than the COP making a series of orders. To my mind this applies whether or not the deputy is appointed to make decisions relating to property and affairs or welfare or both. In both property and affairs cases and welfare cases there will be important one off decisions and in such cases the principles and so factors set out in section 16(4) would be likely to point in favour of the COP making the decisions. But in both a need to make a number of decisions on a single matter (e.g., selling a house or a course of treatment), or on a number of day to day matters over a long period (e.g., management of a person’s day to day affairs relating to expenditure and/or their care and support plan) will often arise that will clearly outweigh the principles identified in section 16(4). In many such cases regular return to the COP would be unnecessarily time consuming, emotionally stressful and expensive and so contrary to P’s best interests”.[39]In CB, Keehan J referred extensively to G v E and Lawson in a judgment in which he explained his reasons for refusing an application for welfare deputyship; Keehan J concluded that the reasons for seeking deputyship on those facts did “not fall within the framework of section 16 of the 2005 Act” ([35]); he said that “the reality of this application” was: “…not to seek authority to make decisions, it is in relation to status and a desire to be taken seriously, and listened to by professionals who care for or are involved in the care of, or the treatment of, CB. …That is not, as the Official Solicitor submits, an appropriate use of deputyship” ([32]/[33]).[40]In XY, HHJ Hilder (Senior Court of Protection Judge) considered the extent of authority of appointed welfare deputies, and specifically, whether their authority to decide whether XY should take part in particular leisure or social activities encompassed decisions about his internet and social media use. Of relevance to the instant appeal, she said this at [44]: “The basic legal framework for welfare decision making is the collaborative decision-making process set out in sections 1, 4 and 5 of the Act, which operates defensively. The appointment of a deputy changes this underlying legal position. Deputyship is not merely an amplified voice in discussions - it is a decision-making authority. It is therefore obviously important that the ‘positives’ are carefully considered by the judge who makes the order, and carefully expressed in the order to minimise scope for misunderstanding”.[41]The final authority to which reference was made was Parr. That case concerned Ruby Parr (‘Ruby’), an 18 year old young woman; Poole J made an order appointing Ruby’s mother as her PWD. There are plainly a number of factual similarities between the situation of Ruby and that of HB; these were alluded to (but not discussed at all) by the Judge at [J35]. It seems to me that they include the following: i) Both Ruby and HB present with significant learning and other disabilities; neither HB nor Ruby will realistically ever acquire decision-making capacity in relation to their welfare; ii) Both Ruby and HB were transitioning or had recently transitioned from childhood to adulthood at the time of the application for the PWD; iii) In each case the applicant for PWD was a loving and committed parent about whom no concerns or criticisms were raised; both Ruby and HB show every indication of trusting their parents; iv) The parents in each case had experienced gaps and failings in services for their children and communications relating to the same; in each case there had been conflicts with the authorities; in each case, the parents had experience of being ignored by professionals in relation to decisions for their children; v) Both the mother in Parr and the Appellants in this case have a good track record of collaborative working; vi) The application for PWD in each case was not in fact contested; in each case, the application was supported from within the family and from professionals; vii) A series (“a stream” [27] in Parr) of important decisions had been needed, and would further be needed in both cases, sometimes urgently.[42]In making his order in Parr, Poole J observed at [21]:
“The wording of the MCA 2005 and the Code of Practice discourage PWD applications. It is understandable that adult autonomy should be jealously guarded. Assigning personal welfare decisions to another adult removes autonomy in relation to hugely important matters from P. Hence the principles set out at MCA 2005 s16(4)”
. I comment further below on the issue of autonomy (see §63-68 below). Poole J expressly stated that he was applying Hayden J’s eleven principles in Lawson (see [40]) (of which I have reproduced only five above at §37), having purported to summarise the key principles from Lawson at [17]. Having reviewed the facts in some detail, Poole J concluded in Parr that the appointment of Ms Parr as the PWD was without doubt in Ruby’s best interests (see [38]) given “Ruby’s particular history and circumstances” ([29]).

Grounds of Appeal

[43]The Appellants challenge the Judge’s decision and reasoning under five interlinking grounds: i) Ground 1: The Judge was wrong to depart from the approach and decision of Poole in Parr, despite the striking factual similarities in the two applications; ii) Ground 2:

The Judge was wrong to conclude:

“In my view, the examples given by JB and SB demonstrate how collaborative decision-making can work and has worked in HB’s best interests”
. It was not open to the Judge to reach this conclusion on the basis of the factual scenarios that were presented in support of the application; iii) Ground 3: The Judge was wrong to conclude that the appointment of a PWD would be an ‘unnecessary infringement of HB’s right to autonomy’; iv) Ground 4: The Judge was wrong to find that it is not in HB’s best interests for the applicants to be appointed as PWDs, particularly when he found that a series of ongoing decisions would be needed in his case; v) Ground 5: The Judge erred in dismissing the entire application, rather than dismissing the areas of decision making authority that he considered were not required, and where the court could direct that certain decisions were referred to the court for determination.

The arguments

[44]Mr Broach KC and Ms Gardner argue that had the Judge properly applied the MCA 2005 and the relevant authorities, this would be a paradigm case for the appointment of the Appellants as PWDs. They submit that the judge was wrong to depart from the decision of Poole J in Parr, notwithstanding the striking factual similarities between the two cases. Those similarities included the subject’s profound lack of capacity, complex health and care needs, the central role of devoted and knowledgeable parents, and the existence of a “stream” of ongoing and interrelated welfare decisions, particularly in the context of present or imminent changes in care and residence (as outlined above). It is said that principles of consistency and fairness required the judge either to reach the same conclusion as in Parr or to explain clearly why a different outcome was justified; he did neither.[45]Secondly, the Appellants challenge the Judge’s conclusion that collaborative decision-making had operated effectively in the HB’s best interests and would continue to do so. They submit that this finding was not open to him on the evidence. The examples relied upon by the judge, including disputes over educational placement, the need for the parents to identify and secure an appropriate residential placement, and intervention to prevent inappropriate medical treatment, were, properly analysed, instances of professional failure or resistance requiring parental intervention, rather than illustrations of effective collaboration. This erroneous finding was said to underpin the judge’s ultimate refusal of the application and was therefore material.[46]Thirdly, the Appellants contend that the judge erred in concluding that the appointment of PWDs would constitute an unnecessary infringement of HB’s autonomy. On the evidence, and consistent with the reasoning in Parr, HB is incapable of making meaningful decisions about his welfare beyond the most rudimentary level. In those circumstances, the appointment of deputies would not diminish any real autonomy, but rather would promote his effective autonomy by ensuring that decisions are taken by those best able to understand and reflect his wishes, feelings and interests. It is said that the judge misapplied the principle of respect for autonomy by treating it as a decisive factor without sufficient regard to its practical operation in a case of profound incapacity.[47]Fourthly, it is submitted that the Judge’s conclusion that the appointment of PWDs was not in HB’s best interests was not reasonably open to him on the evidence. This is said to be particularly so in light of the judge’s own finding that HB would require a series of ongoing welfare decisions. In such a case, Mr Broach argues, the statutory preference for decisions to be taken by the court rather than by a deputy has materially less force. The evidence demonstrated the need for consistent, informed and prompt decision-making by individuals with detailed knowledge of HB, especially in circumstances where there were anticipated changes in placement and a possible transfer of responsibility to a new local authority unfamiliar with his needs. The Judge’s reliance on collaborative processes was said to lack evidential foundation and to overlook the practical difficulties identified in the evidence.[48]Finally, the Appellants submit that, even if the scope of the application was considered too wide, the Judge erred in dismissing it in its entirety rather than tailoring the appointment to confer only such powers as were necessary and appropriate. The statutory scheme expressly permits the making of limited or specific orders, and the concerns identified by the Judge in relation to day-to-day decision-making were, it is said, overstated and capable of being addressed by appropriate limitations on the scope of any deputyship. In those circumstances, Mr Broach invites us to allow the appeal, to set aside the refusal of deputyship, and to re-make the decision by appointing the Appellants as PWDs with suitably defined powers, contending that such an order would best promote and protect their son’s welfare and autonomy[49]Mr Ruck Keene KC (Hon) on behalf of the Official Solicitor did not advance a partisan position but sought to assist the court in resolving this important question by suggesting that the court could either take a restrictive, ‘principled’ approach to deputyship adopted by Hayden J in Lawson, that is to say that deputyship is an exceptional measure, to be used sparingly and only where necessary, or the more flexible, ‘pragmatic’ one adopted by Poole J in Parr, which may be thought to normalise the appointment of deputies in response to perceived systemic deficiencies. Mr Ruck Keene suggested that although Poole J had asserted that he was applying Lawson, the approach in Parr in substance departs from it by lowering the threshold for appointing deputies.[50]Mr Ruck Keene focused on the powers of section 4 and 5 of the MCA 2005, which, when read together, create a strong premise that most decisions for P should be taken informally and collaboratively, rather than by conferring formal authority on a single decision-maker. He pointed out that section 5 operates as a defence, enabling lawful, non-consensual care and treatment where the decision-makers reasonably believe that P lacks capacity and that the act is in P’s best interests. He argued that the MCA 2005 deliberately rejects a guardianship model in favour of supported and collaborative decision-making. Expanding deputyship risks undermining this legislative choice and reversing the shift away from substitute decision-making. He expressed the concern that too ready an appointment of deputies risks perpetuating the misapprehension that incapacitated adults are akin to children, rather than autonomous individuals entitled to respect for their legal capacity.[51]While not arguing vigorously for any particular outcome, Mr Ruck Keene nonetheless submitted that applying the principles outlined above, the appeal should be approached on the basis that Parr may itself be wrongly decided; ground 1 (challenging the judge for failing to follow Parr) therefore lacks foundation. The remaining grounds of appeal, concerning collaborative decision-making, autonomy, and best interests, were based on arguments specific to the facts of this case, and therefore fell outside her immediate purview as Advocate to the Court. Any issue as to the scope of a deputy’s authority must be resolved by reference to the proper interaction between sections 5 and 16 of the MCA 2005, which favour minimal recourse to formal delegation.[52]Finally, the Official Solicitor invited us to give clear guidance as to(i) the test for appointing a PWD, and(ii) the nature of the evidence required to satisfy it, so as to ensure consistency and coherence in future applications.[53]Miss Hughes KC, on behalf of the Public Guardian, argues that the correct legal approach to the appointment of personal welfare deputies is that set out in Lawson, which should be endorsed by the Court of Appeal. Properly construed, the MCA 2005 requires a fact-specific best interests evaluation in every case, guided by the principles of autonomy, least restriction, and the preference for court decisions over the delegation of authority. While there is no presumption against appointing a deputy, the statutory scheme and the availability of collaborative, informal decision-making under sections 4 and 5 mean that, in most cases, appointment will not be in P’s best interests. The judge correctly applied this framework, and his evaluative conclusion cannot be disturbed absent error of principle or a plainly wrong outcome, which the PG does not assert.[54]Miss Hughes further argues that personal welfare deputyship is an exceptional measure which risks undermining the autonomy and dignity of incapacitated adults if used too readily, and should not be treated as a mechanism for resolving systemic failings by public bodies. The decision in Parr should not be followed insofar as it departs from Lawson, particularly by conflating lack of capacity with absence of autonomy and thereby justifying broad substitution of decision-making. Consistent with the MCA 2005, less restrictive alternatives, such as structured consultation and declaratory relief, should be preferred where they can achieve effective participation without conferring sweeping powers on a deputy. She invited us to reaffirm the limited and carefully circumscribed role of welfare deputyship within the statutory scheme.

Summary and conclusion

[55]It seems more logical to discuss the grounds of appeal in a different order from that in which they were advanced; I start with the challenge to the Judge’s determination of the facts which is represented by Ground 2.[56]The extracts of the judgment which I have reproduced at §21 above make clear that the Judge’s decision on this application had been predicated on the factual basis that there was a good history of collaborative decision-making regarding HB which had “worked in HB’s best interests” ([J25]/[J31]). This is not in my judgment borne out by the evidence which is before us, which was unchallenged before the Judge.[57]It is clear that on numerous occasions, the Appellants had to challenge the authorities’ decision-making; SB described how “collaborative decision-making with the local authority and various professionals has been difficult, and we have experienced lengthy, drawn-out battles in order to achieve the best outcomes for HB”. It is evident that these battles were fought in relation to aspects of HB’s education and choice of school, the provision and terms of his EHCP, and his physical, dental, and occupational health. Notwithstanding the evident lack of effective collaboration, the Appellants have continued even in recent time to advocate for HB’s best interests in a persistent, informed, and knowledgeable manner. The transitions officer from Oakridge School described the Appellants in this way: “They have been very good at advocating for their son and showing an in-depth understanding of his complex needs and interaction between them and ability and willingness to work collaboratively with all involved to find the best solution”.[58]I agree with the Appellants that the Judge wrongly treated the planning of HB’s move to Oakridge School as an illustration of collaborative decision-making between the parents and the professionals; on the contrary, the decision was only accepted by the local authority as a concessionary compromise on the eve of a hearing in the SEND Tribunal, on an application brought by the parents. The move to Bryn Glas was not significantly less difficult for the Appellants, given that they faced resistance from the local authority which was (for economic reasons) proposing a wholly unsuitable alternative; had the Appellants not stepped in to safeguard and promote HB’s best interests, his current placement is unlikely to have been achieved. Given that the Judge’s decision was materially underpinned by his conclusion ([J31]) that “collaborative decision-making has worked in HB’s best interests”, I am satisfied that his decision must fall on this ground alone.[59]Separately under this head, but also a point relevant to Ground 5, it is material to point out that the Judge regarded it as impractical for the Appellants to be able to exercise decision-making authority over such matters as “diet, dress, leisure and social activities” ([J26]), and this view appeared to colour his overall conclusion. But the Judge’s approach on this issue fails to account for the following: i) The standard form of application / order (which the Appellants adopted) contemplates that an order may be sought in respect of “decisions on day-to-day care, including diet and dress”; ii) As a matter of fact, the Appellants had made clear that they did not want to be involved in micro-managing HB’s life; In any event, iii) The Judge had the statutory power to determine the scope of the PWD; section 16(6) permits the Judge to make the appointment “on such terms as it considers are in P’s best interests”. Thus, the Judge was not limited to exercising a straight binary choice of granting or refusing the application.[60]It is logical to consider next Ground 4, and the fact that there is likely to be a series of ongoing decisions required for HB. This brought into focus questions of information-sharing and decision-making, and the distinct roles of the court and the applicant for deputyship in the context of decision-making.[61]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.[62]All decisions made for P must be made in their best interests; that is the underpinning principle of the legislation. Decision-making for those who lack capacity has to be considered on a wide spectrum. At one end of the spectrum are the daily decisions which are often routine, mundane and incidental, in respect of which the decision-maker should always have in mind, among other things, P’s past and present wishes and feelings (section 4(6) MCA 2005); the views of a wide range of people are relevant in this category, not just those who are “engaged in caring for” P but also those who are “interested in [P’s] welfare” (section 4(7) MCA 2005). In this regard section 5 comes to the aid of the decision-maker; while section 5 does not confer on a decision-maker a substantive right to make decisions or a general form of authority to act in any particular way, it prevents civil or criminal liability if the decision-maker can demonstrate that in making the decision they reasonably believe that, having complied with the consultation obligation under section 4(7) MCA 2005, the act taken by them (in connection with the care or treatment of P) is in P’s best interests. Blake J made this point firmly in Winspear v City Hospitals Sunderland NHS Foundation Trust [2016] QB 691 at [43]:
“If there has been consultation, or a section 4(7) compliant reason to dispense with it, then section 5 of the MCA protects the doctor and through him the defendant from liability for a breach of section 6 of the Human Rights Act 1998 through breach of the procedural obligation in article 8”
. At the other end of the spectrum are the decisions which only a court should make, including, but by no means limited to, issues concerning the provision or withdrawal of life-sustaining treatment. There is a range of decisions in the centre ground of the spectrum for which it could properly be considered as appropriate to grant a PWD.[63]This case concerns this middle ground. I am not sure how helpful it is for me to lay down guidelines as to when deputyship may be appropriate in such cases, but it seems to me that they may well include 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.[64]Ground 3 of the grounds of appeal challenges the Judge’s conclusion that the appointment of a PWD would be an “unnecessary infringement” of HB’s autonomy. It is the Appellants’ case that the grant of a PWD would have precisely the opposite effect, and that a PWD vested in his parents will in fact enhance HB’s autonomy.[65]The discussion of this ground at the appeal hearing gave rise to an interesting, and at times quasi-philosophical, examination of the concept of autonomy in cases concerning persons who lack capacity. All counsel rightly urged caution in pursuing this line of reflection too far. ‘Autonomy’ generally refers to an adult’s ability and right to make their own decisions and govern their own life, based on their own values, preferences, and reasoning. It is a complex and multifaceted concept; it means different things in different contexts. While it is referenced among one of the ‘General Principles’ in the United Nations Convention on the Rights of Persons With Disabilities (‘CRPD’) (see Article 3:
“Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”
[emphasis added], and Article 16 CRPD alongside “health, welfare, self-respect, dignity”), it does not feature explicitly in the European Convention on Human Rights, albeit that it is often used to describe an aspect of the rights protected by Article 8. It was in this context that Mr Ruck Keene took us to the comments of the Committee on the Rights of Persons with Disabilities (General Comment No. 1 - Article 12: Equal recognition before the law (2014)), in which it had been observed that some disabled persons had been “denied their right to legal capacity … in a discriminatory manner under substitute decision-making regimes such as guardianship”.[66]The counterpoint to the concerns outlined in the paragraph above is the underlying principle in public law that it should not be the State, whether through the agency of an authority or the court, which is primarily responsible for individuals who are subjects or its citizens; as Hedley J said in Re P [2010] EWHC 1592 (Fam) at [8]:
“It is for those who naturally have their care and wellbeing at heart, that is to say, members of the family, where they are willing and able to do so, to take first place in the care and upbringing, not only of children, but of those whose needs, because of disability, extend far into adulthood. It seems to me at least that the Act ought to be read subject to that overriding policy aim”
. This is, in my judgment, the approach to follow in this case.[67]Notably, the word ‘autonomy’ does not feature in the MCA 2005; that has not deterred judges and practitioners from using the word liberally in Court of Protection proceedings and judgments as short-hand for one or more of the key underlying objectives of the MCA 2005. I consider it to be an over-used term. Indeed, Munby J (as he then was) offered a characteristically disciplined riposte to such liberal use of the term in In re X (A Child) (Capacity to Consent to Termination) (2014) 139 BMLR 143 (‘Re X’) by observing that a child or incapacitated adult may as a matter of “strict law” actually lack autonomy, although recognising the notion of “qualified autonomy” (see Re X at [10]) in certain circumstances.[68]Considerable emphasis has been placed in the caselaw to which we were taken on the concept of autonomy. In Lawson, Hayden J referenced the term several times (see [51], [53(a)], [53(b)] and [53(h)]), describing “recognition of the importance of human autonomy” as “the defining principle of the Act” ([53(h)]). Similarly, in Parr, Poole J observed that the wording of the MCA 2005 and the Code of Practice tends to discourage applications for a personal welfare deputyship on the basis that it was necessary “jealously” to guard “adult autonomy” ([21]), noting further that the assignment of personal welfare decisions to another necessarily removes autonomy from P in relation to matters of great importance.[69]Against that background, I suggest that the concept of autonomy is capable of bearing a range of meanings, even within the group of persons who are subject to applications under the MCA 2005. Its inherent elasticity in a range of contexts makes it, in my judgment, an uncertain and inapposite tool for determining whether a deputyship order should be made, particularly given that the cohort to whom it applies encompasses a broad spectrum of ability and disability. The extent to which any one of them can exercise any degree of autonomy will inevitably be different in every case. The purpose of a PWD order is to facilitate decision-making. In many cases of this kind, including the present, the appointment of a deputy may in practice enhance rather than diminish the effectiveness of decision-making for P and may increase, rather than reduce, P’s ability to influence the course of their life. It is therefore preferable for the court to focus on the statutory framework. The court’s task is to apply the least restrictive option, to support and enable P’s participation in decision-making, and to give appropriate weight to P’s wishes and feelings. To the extent that recourse is made to non-statutory concepts, considerations of dignity and quality of life provide a more useful and concrete analytical framework. On the facts of this case, and given his parents’ unique ability to read his cues and understand his particular manner of communication, I accept the Appellants’ argument (see §46 above) that granting PWDs to JB and SB would be likely to enable HB’s greater participation in decision-making, having regard to his wishes and feelings, and thus enhance his quality of life.[70]Finally, I turn to Ground 1, and the complaint that the Judge had failed to adopt the approach taken in Parr. Inevitably, cases concerning young incapacitous adults transitioning from childhood will turn to a degree on their own facts. The decision of Poole J in Parr (and the reasoned judgment which supports it) is a good illustration of the circumstances in which it was plainly right to appoint a PWD for P. Although the fact that a similar case has been decided differently by a different judge is not a basis for an appeal, the facts of that case and this were so similar that the parties could reasonably expect the Judge to take somewhat greater care than he did (his perfunctory disposal of Parr at [J35] is referenced at §23 above) to explain why he had reached a contrary view from that reached by Poole J.[71]I accept Hayden J’s warning of the risk that judges of the Court of Protection may adopt a “risk averse instinct to protect P” ([51]) by appointing deputies; I accept that those same judges should “vigilantly” guard against extending the notion of parental responsibility for a person who lacks capacity beyond their age of 18 (even where that is motivated by a “natural and indeed healthy parental instinct” ([53(b)] of Lawson)). However, in my judgment, the approach which the Judge ought to have taken in the present case would not have offended either of those principles. It would neither have reflected undue risk aversion nor have involved an impermissible extension of parental responsibility into adulthood.[72]Indeed, while I guard myself against the temptation to regard HB (and others in his situation) as a grown-up child (see Hayden J in TN v An NHS ICB & Another [2022] EWCOP 53 at [27], and Poole J in Parr at [40])there is something to be said for the grant of a time-limited PWD to a parent or parents of a young person with cognitive impairment moving into adulthood to give them decision-making authority for at least this crucial period of time. Such an approach is consistent, as Mr Ruck Keene pointed out, with the fact that young people between the ages of 18 and 25 are or can be treated differently in the context of Special Educational Needs; Parliament has made specific provision in England for young people up to the age of 25 in this regard (see section 80 and 83 of the Children and Families Act 2014: “young person” means a person over compulsory school age but under 25”, read together with regulation 64 of the Special Educational Needs and Disability Regulations 2014: SI 2014/1530).[73]Thus, for the reasons set out above, and as earlier indicated (§6 above), I would allow the appeal. I accept Mr Broach’s submission that the MCA 2005 expressly permits the making of limited or specific orders, and the PWD in this case could be specifically defined by appropriate limitations being placed on the scope of the deputyship. In those circumstances, and as I have earlier suggested, the Appellants’ application shall now be remitted to a Tier 2 judge of the Court of Protection for determination as to the precise scope and duration of the PWD order. Lord Justice Nugee[74]I agree. Lady Justice King[75]I also agree.