Why the Court of Protection may not grant permission for a health and welfare deputy order

Posted by Kelly Duke on 18th April 2012

Since the implementation of the Mental Capacity Act in 2007 it has been possible for the Court of Protection to grant a deputyship order to enable an appointed person to make decisions in relation to the health and welfare matters of an individual. Health and welfare decisions could involve place of residence, contact and access and medical treatment decisions. Health and welfare orders are only available where an individual lacks capacity to make these decisions for themselves. Before the Court considers health and welfare matters it must decide whether they will grant permission for the application to be heard by considering the applicant’s COP2 permission form. This is to ensure that the application is necessary and well grounded. Over the last few years it has become clear that the Court are reluctant to grant permission for a health and welfare deputyship order and the number of successful applications has decreased due to an increase in refusal of permission. If the Court decides to refuse permission an order will be granted to this effect. If permission is refused is does not preclude a future application being made and permission sought again at a more appropriate time nor will it preclude a property and affairs deputyship application.

When deciding whether to appoint a health and welfare deputy to act in relation to an incapacitated individual’s affairs the Court must have regard to the principles that:-

1) a decision of the court is to be preferred to the appointment of a deputy; and
2) the powers conferred on a deputy should be limited in scope and duration as is reasonably practicable in the circumstances.

These conditions were imposed to ensure that granting a deputyship order should be the last resort when a one off order cannot be made by the Court. If a deputy is appointed it is likely to be only in the most difficult circumstances 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 interest of the incapacitated individual. By way of example this could be where an individual suffers from a progressive illness or profound learning disabilities and requires a series of medical decisions to be made on their behalf over a period of time, where a history of family disputes could have a detrimental effect on the incapacitated individual’s future care or where an incapacitated individual is considered to be at risk of serious harm if left in the care of family members.

Wide powers in relation to health and welfare matters are contained in the Mental Capacity Act. It is because of the broad provisions contained in Section five of the Mental Capacity Act that a health and welfare application should be a last resort. As is always the case with capacity related decisions the person seeking to make the decision on behalf of the incapacitated individual must take all reasonably practicable steps to ensure the incapacitated individual cannot make the decision for themselves. The decision maker must believe that the decision being made is in the best interests of the incapacitated individual. The decision maker will not incur liability for their actions that he would not have incurred if the incapacitated person had capacity to consent in relation to the decision being made and had consented to the decision maker making the decision. Nothing however in the Mental Capacity Act will exclude a decision maker’s civil liability for loss or damage or potential criminal liability from negligence in acting on behalf of the incapacitate person.

Section five will allow decision makers to take action to ensure a person lacking capacity can consent to receiving medical treatment, it allows consideration to be given to making decisions relating to major healthcare and medical treatment. Final responsibility for deciding what is in a person’s best interest lies with the medical staff responsible for treatment. Some decisions can only be made by the Court however as they are so serious such as withdrawing artificial nutrition and hydration from an individual in a persistent vegetative state, consent to organ donation or bone marrow or cases where a particular treatment is disputed.

Section five does not allow an incapacitated individual to be restrained unless it is necessary to do so to prevent harm. The restraint must be a proportionate response to the likelihood of suffering harm and the seriousness of the harm. Restraint is the use of force or the threat of force to complete an act which the incapacitated individual resists or a restriction of their movement whether or not the incapacitated individual resists.

Section five does not however prevent life sustaining treatment or action being taken to prevent a serious deterioration in an incapacitated individual’s condition whilst authorisation or declarations are made by the Court of Protection.

If an incapacitated individual has appointed a health and welfare attorney to act under a health and welfare lasting power of attorney the power to make decisions in their behalf lies with the attorney. There may be no need to consider a health and welfare deputyship appointment from the Court of Protection or using Section five of the Mental Capacity Act as the attorney will have legal authority to make decisions on behalf of the incapacitated individual according to the powers granted. It is possible that an individual may also have signed an advance decision stating what treatment they do not wish to receive that will be followed by medical practitioners.

Health and welfare decisions are not easy to make. Whenever possible our advice would be for individuals to consider preparing a health and welfare lasting power of attorney to ensure that an attorney is on hand to make decisions when required thus removing the need to rely on Section five of the Mental Capacity Act or trying to obtain a difficult order from the Court.

Kelly Duke
Partner

Tel. 01622 776429

Email Kelly