Alex RKAB v CD [2024] EWCOP 32 concerned the best interests of a 27 year old man with a moderate learning disability, and visual and hearing impairments. At heart, it was a dispute between his mother, who had (in her own words) brought him in a “very alternative way”, and the local authority responsible for his care and placement in a supported living placement. His mother, who described how she had moved away from South Yorkshire some years previously, having experienced harassment, wished him to move to south west England to live with her; Sheffield City Council resisted this. HHJ Baddeley helpfully summarised his findings thus:
i)CD is safe and generally content at EF.
ii) KL could do more to promote different activities and CD’s psychosocial development.
iii) KL have adopted a risk averse approach and have been slow to implement change.
iv) CD enjoys spending time with AB. He did not want to leave South West England on his visit early in the year. However, this may have been his reaction to a lovely weekend rather than the result of a considered analysis of the pros and cons of a permanent move to South West England.
v) AB has a very different attitude to risk to the professionals. She believes that risks are worth taking so that CD can fly.
vi) The conflict between AB and professionals, particularly at KL, has been harmful to CD. AB must take some of the responsibility for that. Sometimes she has communicated in ways that have increased the conflict, which has worked against her son’s best interests.
vii) AB’s plans for CD in South West England are not fully developed. She plans for him to stay with her in her two-bedroom flat initially with support from personal assistants. She was clear that this arrangement was only to be a “stepping stone.” There is a lot of uncertainty around the longer-term plans. Whilst enquiries have been made by AB of potential personal assistants, no supported or semi-independent placements have been identified in South West England.
viii) Professionals find AB difficult. It is not known whether AB will be able to develop a working relationship with professionals in South West England that would further CD’s interests.
HHJ Baddely agreed with the independent social worker that it was in CD’s best interests to remain at EF for another year, with the issue of his potential relocation to South West England to be considered at his next annual deprivation of liberty review. He also endorsed changes to the contact arrangements. He noted that
118. [… ] there now needs to be a comprehensive assessment of whether CD does require 2:1 support or whether 1:1 is sufficient. This is an issue that has been contentious throughout the protracted litigation […] and does need to be resolved now. This is obviously highly relevant to the issue of whether it is in CD’s best interests to be able to spend time alone with his mother, which she dearly wants, for understandable reasons.
As regards the appointment of a deputy, HHJ Baddeley noted that this was unusual, but that:
106. I am however satisfied that this is one of those rare cases in which it is in CD’s best interests for a deputy to be appointed, for the reasons put forward by Mr Wall. As Miss Gardner put it in her submissions, “Hopefully, a health and welfare deputy will draw a line in the sand – because the current arrangements are not working.”
107. I am pleased to learn that SCC is willing to fund a Deputy for an initial 12-month period. Maria Christine Hutchinson has agreed to act in this role. I have considered the COP4 form that has been filed. She appears to be well qualified to act in this role, having a knowledge of the care system and how the Act operates. I understand that she has no links with any of the parties and so can bring a fresh pair of eyes to this difficult case.
108. No other potential deputies who are willing to act have been identified.
109. I shall appoint Maria Christine Hutchinson as health and welfare deputy.
110. The powers of the Deputy shall be as follows:
“The court authorises the deputy to make the following decisions on behalf of CD that he is unable to make for himself at the time when the decision needs to be made:
(i) Overseeing and consulting with SCC and NHS South Yorkshire Integrated Care Board about arrangements made by them as the responsible s.117 MHA bodies, for his care and support and by KL as the provider of care, to include liaison/consultations with clinical/medical professionals, representatives of bodies with social care and health care responsibilities, and CD’s family about CD’s care;
(ii) Making arrangements for contact between CD and his family including communicating the nature of those arrangements to the providers of CD’s care and the family;
(iii) Making health and welfare decisions not already decided for CD by the court, in consultation with providers of care services, clinical/medical professionals, representatives of bodies with social care and health care responsibilities, and CD’s family;
(iv) Raising any issues of concern or complaints about CD’s care or treatment with the appropriate authority/person for investigation as applicable, and deciding which concerns and complaints raised by others are to be taken forward for investigation by the appropriate authority/person.
(v) In liaison with SCC, KL and AB agreeing and keeping under review a communication agreement setting out a mechanism by which communication will take place between the parties.
The deputy has permission to obtain any medical and social care records held by third parties in relation to CD. Any party (save for CD’s legal representatives) requesting records relating to CD shall make a request to the deputy, who will decide which documents, if any, should be provided.”
Comment
This case provides an example of when (unusually) the Court of Protection considers that it is in the best interests of P to appoint a health and welfare deputy. The judge of the former Vice-President of the Court of Protection, Hayden J, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies) [2019] EWCOP 22 explored in considerable detail why it is unusual to appoint a health and welfare deputy, whereas the appointment of property and affairs deputies is routine. In short, this is because s.5 MCA 2005 provides an informal ‘workaround’ for the inability of the person to consent to acts and care treatment; there is (broadly) no such workaround for the inability of a person to make decisions about property and financial affairs. In consequence, formal authority is required for the latter in a way that is not required for the former.
The case also provides a useful outline of the powers that were considered – at this stage – to be necessary for the deputy to exercise in CD’s best interests.
