“(i) to prohibit any person from having contact with him; (ii) to direct a person responsible for his health care to allow a different person to take over that responsibility; … (v) to refuse consent to the carrying out or continuation of life sustaining treatment in relation to him; and (vi) to do an act that is intended to restrain him otherwise than in accordance with the conditions specified in the Act.”
“i. The court expressed sympathy for the Health Board’s approach to and rationale for the welfare findings sought but considered it necessary to refocus and refine the findings sought; ii. In relation to residence, the court considered that there would be little difficulty in concluding that it would be in LL’s best interests to live in an otherwise suitable placement, where the provider has identified rules and/or restrictions (in relation to contact with LL, communication with staff, or the way staff and visitors interact) in order to ensure that the placement can continue to care for LL. On that basis, it was not necessary to engage in a five-day fact-finding hearing in order to enable a placement to implement such rules or restrictions; iii. In relation to the Health Board’s application to revoke CL’s Health and Welfare Deputyship for LL, the court considered that this could be dealt with by way of written submissions in advance of the December hearing, and did not require findings of fact; iv. The court indicated that the fact-finding should be focussed on unlocking the issue of contact by addressing the practical difficulties to CL’s contact with LL in the community (outside any restrictions or rules imposed by a residential provider) and issues surrounding the implementation of LL’s care plan. The fact-find will therefore focus on: i) LL’s contact with CL in the community, whether supported by CL and one other or by two professional carers; ii) CL’s attendance at medical appointments; and iii) CL’s engagement in care planning and broader decision-making about LL; v. The Health Board will amend the Welfare Findings sought to address those three issues and reframe the accompanying schedule of evidence, adding as little as possible by way of additional references to the existing bundle and no references to anything outside that bundle.”
“74. In my judgment, it is appropriate to discharge the deputyship in its entirety. Many of the decisions in respect of which authority is provided under the deputyship are now matters that are firmly before the Court of Protection or are otherwise matters in respect of which C is no longer the decision-maker, in particular residence, with whom P should live, the day-to-day diet and dress, leisure and social activities, provision of care, services and future care. To retain a deputyship in respect of those matters would be disproportionate and unnecessary and would represent an unjustifiable intrusion into P's life and decision-making. Such an order would be contrary to the principles of section 16(4) and the guidance thereto and the principles echoed through the case law. 75. Likewise in respect of medical treatment, the circumstances are now such that the current deputyship seems to me to amount to a request for a deputyship to enable C to continue to be informed. That is provided for by the section 4(7) duty. Indeed, should any party be unaware or mistaken as to the extent of their duty under 4(7), it is now fortified by the protocols that I have proved. 76. Further, the current deputyship and proposed variation in those circumstances would, in my judgment, run contrary to the guidance provided by Keehan J in YH v Kent County Council & Ors[2021] EWCOP 43 . The relevant paragraph is helpfully set out at paragraph 41 of the Health Board's position statement, where Keehan J said that YH's position in that case was one where, in effect, the applicant seeks the deputyship so that she has a label, a status and so that she would be listened to and consulted. That, in the view of Keehan J, was not an appropriate basis upon which to found an application for deputyship. He went on to say this at paragraph 32 of his judgment: "I would be content for this order and/or the care plan to set out clear indications of the importance of the role of YH in being involved in decision making about the care and life of her sister, CB, but welfare deputyship is about making decisions for an incapacitous person. They are to be limited in time. The reality of the application is it is 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 …" 77. Paragraph 33: "That is not, as the Official Solicitor submits, an appropriate use of deputyship. In any event, were this application based on making decisions for CB … deputyship would be required for years to come and not, as decided by Baker J in G v E, on a very time limited basis and restricted scope … if there was the collaborative and cooperative approach taken by all involved in making decisions about CB … such an order and remedy would not be required. I also take account of the fact that there has been a very substantial change in circumstances in recent times." 78. Paragraph 35: "Accordingly, I am not persuaded that it is appropriate for me to appoint YH … The reasons for it being sought do not fall within the framework of section 16 of the 2005 Act, and it would be for an inappropriate and impermissible use of section 16 …" 79. I also note and adopt the observations of the Health Board at paragraph 60 of the skeleton argument submitted, where they say this: "Mark Caulfield the independent social worker's observations in his first addendum report are relevant here, at paragraph 1.37.3 of Mr Caulfield's report: 'Whoever is responsible for providing day-to-day care to P will be responsible for undertaking MCA assessments surrounding decisions which arise and subsequently best interest decisions where P may lack the capacity to make decisions. It would be impractical for C to be consulted about every decision and those supporting P will be responsible for maintaining his overall safety. They therefore must be empowered to take responsibility for his overall care as they will undoubtedly be held accountable to ensure his safety and promote his autonomy.'" 80. It seems to me that a deputyship as contended for by both C and supported by V would run contrary to those principles and indeed would amount to that impermissible use identified by Keehan J. The appropriate approach is for consultation to be pursuant to section 4(7), supplemented by the protocols that I have approved and for that collaborative approach that Keehan J highlighted. 81. I reject the contention there is nothing before the court on which the court can make a best interests assessment. It is clear that best interests requires consideration of all the circumstances, an assessment of matters including the extent to which an order or decision intrudes into P's life. I accept the Health Board’s assessment of the actual circumstances surrounding the provision of P’s needs in relation to P. The fact that this order is not limited in time is one factor that the court can consider. The order provides for decision making to be vested in C when she is not in a position to make those decisions. That is a factor that the court can weigh. The effect that an order or the continuation of the deputyship would not enhance the collaborative approach required in this case with clinicians and indeed might, at worst, be detrimental to it, are relevant factors to the section 4 assessment. 82. In arriving at the conclusion that it is in P's best interests for this deputyship to be discharged, I have had regard, as Mr McKendrick encourages me to do, to the fact there is no analysis of wishes and feelings in this case, with wishes and feelings, of course, being an important factor. But, in my judgment, the submission by the Health Board and the litigation friend is a sound one in this regard: wishes and feelings on a conceptually complex matter such as this deputyship is difficult, if not impossible. One cannot extrapolate from the love that P has for his mother that he would wish for her to be deputy. 83. While the decision to discharge the deputyship may well infringe upon rights held by C, in so far as it does, it is an appropriate infringement. In arriving at the decision that I have, I have also had regard to the United Nations Convention on the Rights of Persons with Disabilities, article 12.4. But ultimately I conclude that the deputyship should be discharged since the overwhelming majority of the matters in respect of which C has authority under the deputyship are matters in respect of which she is not the decision maker, and those matters that remain are such that the role that is proposed by C under the deputyship falls foul of the guidance given in, in particular, YH v Kent by Keehan J and represent an order that is not the least restrictive that the court can make or decision the court can arrive at in this case.”
“Those of our respondents who commented…there should be no restriction on the making of specific order (as opposed to appointments)….”
“The manager’s duty will otherwise match that of all those who act under the new legislation, being a duty to act in the best interests of the person concerned, having regard to the statutory factors. The court will have power to vary or discharge the order appointing a manager who fails to do so.” iii) Secondly, the Explanatory Notes also support the appellant’s interpretation. It states: “The court can always vary or discharge its orders and subsection 8 provides that it has power to take away or alter a deputy’s powers if the deputy is overstepping his powers or not adhering to his best interests obligations.” iv) Furthermore the MCA Code of Practice clearly supports the appellant’s interpretation. The ‘quick summary’ to Chapter 8 states: “The Court of Protection has powers to…remove deputies or attorneys who fail to carry out their duties.”
‘In my judgment, it is appropriate to discharge the deputyship in its entirety. Many of the decisions in respect of which authority is provided under the deputyship are now matters that are firmly before the Court of Protection or are otherwise matters in respect of which [CL] is no longer the decision-maker, in particular residence, with whom P should live, the day to day diet and dress, leisure and social activities, provision of care, services and future care. To retain a deputyship in respect of those matters would be disproportionate and unnecessary and would represent an unjustifiable intrusion into P’s life and decision-making. Such an order would be contrary to the principles of section 16(4) and the guidance thereto and the principles echoed through the case law.’