HDEB, Re [2026] EWCOP 12 (T2)
[16]Capacity 16). There is no disagreement that HDEB lacks capacity to make decisions regarding his personal welfare. The presumption of capacity at section 1(2) of the Act is effectively rebutted by the COP3 capacity assessment filed with the application.[18]Discussion 17). My starting point is HDEB’s right to respect for his autonomy. He is a 22-year-old man; it has been more than 4 years since JB and SB held parental responsibility for him. HDEB’s disabilities may mean that he is less able to exercise his autonomy than a non-disabled person, but that does not mean that his right to autonomy should be any less jealously guarded. As Hayden J stated at [53b] of Lawson, Mottram and Hopton, ‘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.’ 18). Sections 4 and 5 of the Act envisage a system of collaborative and informal decision-making. JB and SB are people whose views must be taken into account by any person making a best interests decision on HDEB’s behalf (section 4(7) MCA). They are engaged in caring for him and interested in his welfare (section 4(7)(b)); they are also property and affairs deputies appointed by the court (section 4(7)(d)). It seems to me virtually impossible that any best interests decision make could claim that it is not practicable and appropriate to consult JB and SB given their love for and knowledge of HDEB and the fact that they have twice moved house to be close to where he is living. 19). As an experienced Court of Protection judge, I recognise that the system of collaborative decision-making envisaged by sections 4 and 5 of the MCA does not always run as the statue intends. It is for this reason that I ordered JB and SB to file a second witness statement as set out at a paragraph 9) above. 20). JB, in his second witness statement (pg 106), describes a number of difficulties that JB and SB have faced when dealing with statutory bodies. As he acknowledges, the majority of examples are from when HDEB was a child and JB and SB still had parental responsibility. 21). JB and SB had great difficulty in ensuring that HDEB was provided with an adequate 52-week residential school placement (paras 12-15, pgs 108 and 109); indeed they had to appeal to a SEND tribunal. However, HDEB’s local authority agreed that a residential school was required just before a final SEND tribunal hearing and conceded that it should be a 52-week rather than term-time placement without JB and SB having to issue a second appeal. 22). JB and SB faced further difficulties when HDEB had to move on from PC (paras 18-19, pg 110). His local authority proposed a placement which JB and SB felt was completely unsuitable for HDEB. They had to take steps to find a placement and were able to source BC. Again, I am pleased that JB and SB were able to persuade the local authority that BC was the right place for their son. 23). JB describes how difficult it is for HDEB to communicate when he is anxious and unhappy (para 22, pg 111). His family have learned to observe him and to anticipate his needs. I’m sure JB is right to say that professionals, including social workers, find it difficult to understand HDEB’s needs and wishes. However, for HDEB’s autonomy to be respected, those professionals are going to have to learn how to effectively communicate with him. They cannot simply rely on HDEB’s family to let them know what HDEB wants, needs or is trying to communicate. They can learn from the experience and knowledge of his family how to best communicate with and understand him. 24). There was a frightening incident when a new dental surgeon at first refused to accept the advice that JB and SB had received from a senior anaesthetist that it wasn’t in HDEB’s best interests to receive a general anaesthetic (para 23, pg 112). The dentist did eventually accept that alternative treatment should be provided, but JB and SB consider that is only because they had parental responsibility. Whether that was the case is impossible for me to know. However, the new dental surgeon would be bound to consult JB and SB regarding HDEB’s dental treatment pursuant to section 4 MCA. 25). In my view, the examples given by JB and SB demonstrate how collaborative decision-making can work and has worked in HDEB’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 appears to have been made. 26). 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 HDEB 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 HDEB 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 HDEB’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. 27). 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. 28). It seems that HDEB may have to move on from BC 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 HDEB’s stay at BC. It is the decision as to where HDEB 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. 29). A number of scenarios could develop. SB and JB and the local authority may agree on which available option is in HDEB’s best interests. In that case the collaborative decision making envisaged by sections 4 and 5 MCA will be relatively straightforward. Secondly, the local authority could be neutral between 2 options, but when having taken into account the views of SB and JB agrees with SB and JB as to which is the option that is in HDEB’s best interests. The third option is that the local authority presents available options but there is disagreement between SB and JB on the one hand and the local authority on the other as to which is in HDEB’s best interests. In that situation, SB and JB consider that the decision should be theirs as PWDs. I am afraid that I disagree with them. If there is such a disagreement in relation to a decision as important as residence, then section 16 (4) (a) says that a decision of the court is to be preferred to the appointment of PWDs to make the decision. 30). I note that a transitions officer at PC, the Chief Executive Officer of an autism charity and HDEB’s aunt all actively support JB and SB’s application. I also note that the local authority does not oppose it. In my judgment, those are all persons whose views I should take into account when making this decision, and I do so. Their views, however, are not determinative of my decision. Conclusion 31). I know that this decision will be very disappointing for JB and SB, but I do not find it to be in HDEB’s best interests to appoint JB and SB as PWDs for HDEB. 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 HDEB’s right to autonomy as a 22-year-old adult. 32). I want to make absolutely clear that my decision is not any reflection on JB’s and SB’s love and concern for HDEB nor is it based on any concerns as to their parenting. They are completely committed to HDEB and to his welfare. They understand him and have shown themselves to be very capable of working collaboratively with professionals. HDEB could not have wished for better parents. 33). I recognise that HDEB will not just require a one-off decision, but a series of ongoing decisions. It seems to me that those ongoing decisions should be made collaboratively rather than by PWDs. 34). I am clear that there is no presumption against the appointment of PWDs, as Mr Justice Hayden made clear. However, I do not find that it is in HDEB’s best interests to have PWDs making welfare decisions on his behalf. 35). I recognise that I have come to a different decision in this case than Mr Justice Poole did in Parr , despite the circumstances of HDEB, JB and SB having similarities to that of Ruby and Alison Parr. I do, therefore, grant permission to JB and SB to appeal to a Tier 3 judge if they wish to do so.
Cited in 1 later judgment