The Limits of Health and Welfare Deputyship: Digital Decision-Making

Health and Welfare deputies are appointed by the Court of Protection to make specific decisions concerning a person’s health and welfare where that person lacks capacity to make those decisions. Unlike Property and Financial deputies, that are relatively common, Health and Welfare deputyships are rare and are only granted when ongoing decision making is required and cannot be managed through the usual collaborative framework. Health and welfare deputyship digital decisions represent a growing area of complexity as technology becomes integral to daily life.The law is deliberately cautious and the Mental Capacity Act 2005 confirms that a Court’s decision is preferred over the appointment of a deputy and any powers that are given must be tightly limited in their scope and duration.

Health and welfare deputyship digital decisions: the XY case

Because of this, Health and Welfare deputies can only make the particular decisions expressly authorised in the order. This narrow legal framework often surprises families, especially where ongoing and complex issues arise. This was seen in the recent case of NHS South‑West ICB v XY[1] which concerned the protected person’s (XY) internet use, mobile phone access and social media activity.

In XY’s case, his parents and siblings were appointed jointly and severally as deputies for his Health and Welfare in 2022. Their powers included making day‑to‑day decisions, medical treatment, and determining whether XY should take part in “particular leisure or social activities”. The order did not expressly authorise decisions relating to online activity, internet safety, or digital communication.

XY’s online activity had been a longstanding concern, with professionals repeatedly finding that he lacked capacity to use social media safely and had exposed himself to significant risks. The Deputies argued that decisions about internet use fell within their authority to decide on XY’s “leisure or social activities”. The Deputies relied on a “maximalist” interpretation of the deputyship order and asserted that online activity formed part of XY’s “leisure or social activities”. They also claimed that any decision not expressly excluded must fall within their remit.

The Court rejected this approach, finding it incompatible with the structure of the Mental Capacity Act, which requires specific and express authorisation for health and welfare decisions. Digital‑safety decisions are unique which involve serious risks, and without explicit wording, deputies simply do not hold that power. The judgment emphasises that such powers cannot be “read in” simply because they are not excluded. Health and Welfare deputyships do not create generalised authority over all aspects of a person’s health and welfare.

The Court therefore considered whether the Order appointing the Deputies should be varied to include such powers. Despite the family’s justified concerns, the Court held that decisions about XY’s digital access were of such gravity and complexity that they were better handled collaboratively or by the Court itself, particularly given the safeguarding history.

This case clarifies that health and welfare deputyship digital decisions require explicit authority in the deputyship order. Health and Welfare deputies cannot assume control over a protected persons mobile phone or social media use simply because such issues fall within everyday life. The case further demonstrated that a Health and Welfare Deputy’s authority is limited to the powers conferred within the Order of appointment and nothing more.

[1] [2025] EWCOP 55