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Court of Protection

Welcome to our Court of Protection blog featuring updates, guidance and news from the Wrigleys team.

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Hywel Jenkins

Email: Hywel.Jenkins@wrigleys.co.uk

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How not to make a health and welfare decision

The Court of Protection was asked by TQ a former carer of P to make a health and welfare deputy order under Section 16 in her favour.

P has a life long diagnosis of a severe form of epilepsy, has severe global delay, is unable to verbally communicate and cannot walk. P requires 24 hour care.

P’s family circumstances are very sad and he has no contact with any family member.

When P was accommodated in a residential care home as a child TQ was P’s key worker. She paid special attention to him, and took him on outings, including a holiday to Disneyland, Paris with other staff members. The Court found that she cares greatly for him and so offers him something which no one else does in his life.

When P turned 18 a plan was made for him to move to other accommodation and an alternative placement was identified. Contact was stopped between TQ and P, on the basis of a “policy” that it was in P’s best interests to end carer relationships from the former child placement and to start adapting to adult life. The policy pursued by the new placement was that professional relationships are time bound and professional carers should not be involved in the care of those for whom their employment has ended. The evidence put before the court by the Trust and CCG sought to bring the relationship to an end in pursuit of this policy. Evidence was given that to introduce an old voice to P would slow down the process of adjusting to the new and indefinite home.

Prior to the move TQ raised the issue of her having ongoing contact with him at the new placement and her wish to be appointed as the personal welfare deputy. The local Children’s Trust and Clinical Commissioning Group both opposed TQ’s application.

The written evidence of both the Trust and the CCG was described by counsel for the Official Solicitor as poor and showed a lack of understanding of the principles of the MCA 2005 and the need for proper person centred decision making in relation to P.

The Court found that if the Trust, CCG and placement had followed good practice and the spirit of the MCA 2005 in placing P’s needs at the centre of best interest decision making, the benefits of the ongoing relationship with TQ would have been clear to them. The benefits for P were TQ spending time with him, helping to stimulate him, feeding him, talking to him and showing genuine care for him, when no other single person in his life was willing to do that outside of a professional relationship. Instead the pursuit of the “policy” meant all other evidence was not considered when deciding P’s best interests.

The Judge said they couldn’t praise enough the carer for her quiet, selfless and dignified determination.

The Judge said that if the written evidence had properly set out the information about the facts of the case all parties would have realised prior to the commencement of the hearing that this case did fall into those unusual circumstances where there is a need for P to have a personal welfare deputy to ensure he is at the centre of best interest decisions in the future.

The Judge appointed the carer as the personal deputy and awarded costs against the Trust and CCG.

Comment

The Court takes the view that a deputy will be appointed to take personal welfare decisions in only extreme cases and the Court will usually seek to make an order in respect of a decision, rather than confer an ongoing power on a deputy.

However in this case the Judge was clearly deeply concerned by how P’s case had been handled describing some of the evidence heard regarding the wish to end the relationship between P and TQ as chilling.

Health and welfare deputyships orders are not regularly made and individuals and families will often see these applications as the solution to a failure of a relationship with statutory services. It is important to understand the problem that they are experiencing and health & welfare deputyship may or may not be the answer. In this case the Judge felt that P needed a health and welfare deputy having considered the violation of P’s rights and TQ’s despair at the failings of the system.

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