Mother loses appeal over discharge as personal welfare deputy

The Court of Protection has dismissed an appeal brought by the mother of a disabled young man LL against her removal as his deputy for personal welfare.

CL brought the case against Swansea Bay University Health Board and Swansea City Council, although the latter played no active role in proceedings.

She appealed against the order of HHJ Porter-Bryant that discharged a previous order appointing CL as LL's deputy for personal welfare.

Mrs Justice Theis heard that LL is 22 years old with a number of diagnoses including significant learning disability, atypical autism, attention deficit hyperactivity disorder, and hypermobility/low muscle tone.

LL lived with his mother CL until July 2021 when he was moved to a care home where he still lives although this was intended to be temporary.

CL became his deputy appointed “to make personal welfare decisions…that he is unable to make for himself, subject to the conditions and restrictions set out in the Act and in this order”.

This included deciding where and with whom LL should live, decisions on his day-to-day care, consenting to routine medical examination and treatment, participation in social activities and complaints about his care or treatment.

The order did though prevent CL from prohibiting anyone from having contact with LL, telling someone responsible for his care to allow a different person to take over, to refuse consent for life sustaining treatment and to not restrain LL except as specified in the Act.

In October 2022 the health board applied pursuant to s16(8) Mental Capacity Act to revoke the deputyship order due to CL's behaviour.

Its allegations included her withholding LL's access to his funds, incorrectly claiming benefits for him, withholding his mobility vehicle for eight months and posting personal, sensitive information about LL online with inappropriate photographs and videos.

The board further complained that CL failed to respect LL's privacy, intimidated and threatened care staff and obstructed the safe delivery of care such that safeguarding referrals were needed. Several additional complaints were made.

Theis J said three grounds of appeal were before her: the court erred in law by relying on s 16(7) MCA to discharge the deputyship order; erred in failing to recognise the difference between granting a deputyship and discharging a validly appointed one; the court failed to carry out a detailed and comprehensive best interests analysis.

She granted permission to appeal on all three grounds but went on to dismiss them.

On the first ground, Theis J said HHJ Porter-Bryant's conclusion was “entirely justified” when he stated that in s16(8) of the Mental Capacity Act the words 'in particular' “do not connote an exhaustive list of circumstances in which a deputyship may be revoked or discharged”.

She said the idea that there was unfairness for the deputy “does not stand up to scrutiny in circumstances where the deputy can fully engage and participate in the process that results in any decision”.

On the second ground, Theis J said HHJ Porter-Bryant had carefully weighed the impact on LL of retaining or discharging the deputyship and his conclusions “were securely founded”.

Theis J said carrying out a detailed and comprehensive best interests analysis was a discretionary decision reached by a judge who had been dealing with this case for some considerable time.

She said the judge had considered all the relevant matters, had extensive knowledge of the case and was entitled to reach the conclusions he did.

Theis J added: “I reject the submission that the judge applied an 'off switch' to LL's wishes and feelings. He recognised…the very strong and loving relationship between CL and LL before setting out his rationale for accepting the submissions on behalf of the Health Board and litigation friend regarding wishes and feelings.

"He did not apply an 'off switch' to this important issue but rather concluded that in the context of his long standing involvement with the case this was not a matter where LL's wishes and feelings would assist him. A conclusion he was entitled to reach.”

Mark Smulian