When Are Health & Welfare Deputies Appointed?

Health and welfare deputyships are extremely rare in England and Wales. There are less than 200 such deputyships and the Court only tends to appoint health and welfare deputies in the “most difficult cases, where the Court’s authority is needed to carry out important and necessary decisions and that there is no other way of settling a matter in the best interests of the person who lacks the capacity to make particular welfare decisions.”

Many cases that appear before the Court of Protection with health and welfare issues are “difficult” in some way, but quite often deputies are appointed in proceedings that are very long, that are likely to or actually will keep coming back to Court frequently, and where there are real difficulties in making decisions without a single point of authority being appointed. All Court of Protection cases centre around an individual who lacks the capacity to make certain decisions. The Protected Party may be an elderly person with Alzhiemer’s, a severely disabled person who cannot communicate decisions, or a younger person with a condition such as severe autism, learning difficulties, or a brain injury.

There are often a number of different people or bodies involved in decisions concerning the Protected Party’s welfare. Close relatives, local authorities (many Protected Parties have a social worker), NHS Trusts where medical procedures might have been recommended and care providers can all be involved in Court of Protection proceedings. The Court of Protection generally will expect all those involved to collaborate and try to reach a decision between themselves. The Protected Party themselves will have representation in cases and sometimes the Protected Party’s representatives can be a moderating influence. However, this does not always happen.

When it is simply too difficult for decisions to be made collaboratively, and referring the case back to Court frequently is simply slowing things down too much, the Court might consider appointing a deputy. This is particularly likely when the Protected Party’s needs are complex, and the care that the Protected Party might need, treatment, or their need for contact with others might change frequently and someone is trusted to manage things moving forward.

Deputies do not tend to be a golden solution to all problems in health and welfare cases and sometimes a deputy might think it best to ask the Judge to make a final decision when faced with a particularly challenging or controversial issue. Deputies do tend to cost money and this can diminish the Protected Party’s resources, and although they are not always hugely expensive, a balancing exercise should always take place.

A deputy should be an independent party and ideally someone who has not had any active involvement with the case before. This is particularly important if you have a situation where the Protected Party’s family is at loggerheads with care providers, local authority social workers or hospitals, or even each other. The deputy is then best placed to mediate between the warring factions and make a pragmatic decision. It is extremely rare for relatives of the Protected Party to be appointed in the role but not unheard of – it might in the circumstances be highly appropriate if the Protected Party has no other close relatives and the applicant has a history of good decision-making.

Comment

You are unlikely to see a health and welfare deputy appointed in many Court of Protection cases but the assumption is often that they are unaffordable and disproportionate, which is not always the case – they can in fact be a very useful weapon in the Court’s arsenal.