By Celia Kitzinger, 12th January 2024
UPDATE: The mother/Deputy in this case appealed against the decision to a more senior judge (Mrs Justice Theis, Vice President of the Court of Protection). She lost the appeal. The reasons are set out in this judgment: CL v Swansea Bay University Health Board & Ors
I chose to observe this hearing because I’d been told it would be a “fact-finding” hearing of crucial importance in making future decisions about contact and residence for this family going forward. Allegations against the mother of a young learning-disabled man would be investigated: the judge would hear evidence and make decisions about the facts.
But the hearing turned out to be completely different from what I was expecting.
Most of the hearing I watched was devoted to legal submissions about whether or not the judge had the power, in law, under the Mental Capacity Act 2005, to discharge a Personal Welfare Deputy (the mother) without having first made findings of fact about the allegations against her. So that’s what I’m going to write about here.
Background to the hearing
This case (COP 13290314) has “been before the court for far too long”, said the judge. There have been multiple hearings and it’s been “protracted, costly, and underscored by significant disputes”. There’s a 2185-page bundle of documents I haven’t seen, and this is the first and only hearing I’ve observed. What I’m writing about here is just a ‘snap-shot’ of one issue in a very complex and long-running case – and one that is causing immense distress to the mother.
This hearing took place over three days (5th – 7th December 2023) before HHJ Porter-Bryant sitting in Cardiff[1].
The hearing was “hybrid” with most of the lawyers (and the parties) in court, and it had apparently been organised as such some time ago, despite having been listed as “in person” in CourtServe. One of the barristers, Rosie Scott, joined remotely from her hotel room, having tested positive for COVID-19 the day before the hearing – but the plan to hold the hearing as ”hybrid” predated that. There were also a number of observers on the remote platform, including someone from Mencap Cymru.
- The applicant was Swansea Bay University Health Board, with Rosie Scott of 39 Essex Chambers as counsel
- The young man at the centre of this case (LL) was represented – via his litigation friend – by Nia Gowman.
- The mother was represented by John McKendrick KC (a senior lawyer and part-time judge) with Anna Bicarregui as his junior.
- The father was represented by Kriti Upadhyay
- Finally, Swansea City Council was a fourth respondent, but they were not in court.
The protected party (LL) is in his early twenties and has a number of diagnoses including learning disabilities, physical disabilities and ADHD. There is no dispute that he lacks capacity to litigate this case, and to make decisions about residence, care and contact with others.
At some earlier point in this case the judge had decided “in the light of concern about the accuracy and validity of complaints raised against [the mother]”, to direct a fact-finding hearing which he hoped “would provide a basis on which care planning could move forward”. He ordered the fact-finding hearing in a context in which the mother “felt attacked… she denied many of the allegations… She felt the matter needed to be resolved. She wanted to have her say”. He said he had met with the mother outside of court several times and that he has no doubt about her love for her son or the pain she is suffering because of what is happening: the “hurt and upset she’s felt over the last few years is palpable”. He said he has “never lost sight of her love and determination to do all she can to get the best outcome for LL”.
Preparations for a fact-finding hearing seem not to have gone well. Here’s how the judge described it.
“It had reached a stage where the Health Board and [the mother] were pulling as tightly as they could on either end of a rope. At the centre of this tug of war was LL. Even with a finding of fact hearing, the risk was that the position of the parties would simply become more entrenched. Facts might not assist in making determinations for LL.
The judge indicated that proceedings have recently become less adversarial.
One party needed to step forward to create some slack in the rope. Realistically, that couldn’t be [the mother]…. The Health Board ultimately took that step forward and suggested to me at the last pre-trial review an alternative way in which this matter could be progressed.”
That “alternative way” was for the parties to meet up outside court and try to agree “protocols” (rules for how they would behave) in advance of this hearing.
Shortly before the hearing I observed there had been ten days of negotiations resulting in four protocols for: (1) medical appointments; (2) contact in the community; (3) Christmas contact; and (4) care planning and best interests meetings.
The mother’s lawyer said: “the change in approach of the Health Board is appreciated; it allowed all parties to take a more future focused approach and concentrate on [LL’s] wishes and feelings and what is in [LL’s] best interests”.
The protocols have been agreed between the parties and they are (the judge said) “overwhelmingly in LL’s best interests”. The judge made an order giving these protocols the authority of the court and “everybody must do all they can to avoid going back to the position we were in”.
So, the outstanding issue for this hearing was the Welfare Deputyship.
Deputyship: The issue before the court
A Deputy (s.16 MCA 2005) is someone the court has appointed to make decisions on behalf of someone who can’t make those decisions for themself.
A Deputy is different from an Attorney (ss.9-14 MCA 2005), who is someone the person appoints themselves, in advance of losing capacity, as someone they want to make decisions for them.
There are two kinds of Deputyship – one for welfare and one for finance. The most recent statistics I could find are from 2019, when a judge reported that each year about 375 new Personal Welfare Deputies are appointed, compared to an average of around 15,000 Property and Affairs Deputies (Re Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] EWCOP 22).
In this case, a judge had appointed the mother as a Personal Welfare Deputy for her son in April 2019. The Deputyship Order gives her the right to make a wide range of welfare decisions about her son including: where he should live and with whom, day-to-day care, including diet and dress, consenting to routine medical or dental examination and treatment on his behalf, making arrangements for the provision of care services, whether he should take part in particular leisure or social activities, and complaints about his care or treatment. There is no expiry date for the Deputyship – she holds it “until further order of the court”.
The Health Board applied to the court on 8th October 2022[2] asking for an order to discharge (i.e. end) the Deputyship. If the Deputyship were to be discharged, decisions would be made by the people caring for – or treating – LL. His mother would still be consulted (as everyone who is “caring for the person or interested in his welfare” must be, by law, s.7(b) MCA 2005) but she wouldn’t have a formal role as “the decision maker”. The effect of discharging the Deputyship would put the mother back in the usual position for the parent (or other relative) of an incapacitated adult as envisaged by those who framed the Mental Capacity Act (MCA) 2005.
The Health Board considers it is neither appropriate nor necessary for the mother to have a special legal status as decision-maker for her son for a number of reasons, including that she doesn’t live with him (because the Health Board won’t commission a home care package due to its cost) and so cannot – as a matter of pure practicality – make day-to-day care decisions about (for example) his diet or dress or leisure activities. She does not need to be a Deputy to submit complaints either. The Health Board says they don’t have to prove to the judge that the mother has done anything wrong to give him a reason to discharge the Deputyship. They say the law permits the judge to simply discharge the Deputyship on the grounds it’s not necessary and not in the best interests of LL.
The mother wants to continue to act as her son’s Deputy, although she is willing for some changes to be made to the Deputyship so long as she retains some meaningful care and support role – particularly in relation to medical appointments. She believes that keeping a Deputyship role will be in her son’s best interests because she knows him best, having been his main carer for twenty years or so (until he was moved into care) and she has the most comprehensive understanding of his health needs going back over time.
Her lawyer argued on her behalf that the Deputyship could only be discharged if the Health Board presented evidence and convinced the judge that the mother had behaved (or intended to behave) contrary to her son’s best interests.
In fact, the Health Board believes there is evidence that the mother has acted contrary to her son’s best interest. They’ve already submitted “a voluminous list of allegations” against the mother, in what the judge described as “a wholly inappropriate document”. Allegations seem to include the mother’s negative relationships with professionals, including “inappropriate behaviour” in medical appointments, intemperate language, raised voice, the manner of her engagement in care planning, issues relating to contact in the community, and the way she raises and pursues complaints about her son’s care.
If the mother’s lawyer is right that the Deputyship can only be discharged if the judge decides that these allegations are factually true, then there would have to be a fact-finding hearing.
If the Health Board’s lawyer is right that a Deputyship can be discharged without findings of wrongdoing, then the judge can decide – in light of the fact that the mother doesn’t live with her son and has limited contact with him, as well as the obvious conflict between the parties – that the Deputyship is not in the LL’s best interests and he can simply discharge it.
A key question before the court at this stage, then, is whether the judge can discharge a Deputy without first determining that the Deputy has done something wrong.
What does the Mental Capacity Act 2005 say about discharge/revocation of Deputyship?
The judge must act in accordance with the law – in particular, in this case, s.16 of the Mental Capacity Act 2005, which sets out the statutory law relating to the appointment and discharge of Personal Welfare Deputies.
Argument in court focussed on s.16(7) and s.16(8):
16(7) An order of the court may be varied or discharged by a subsequent order.
16 (8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy— (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.
The lawyer for the Trust (Rosie Scott of 39 Essex Chambers) based the application to discharge the Deputyship on s.16(7) of the Mental Capacity Act 2005. She says it means that the Deputyship “can be varied or discharged by a subsequent order” – and the order to discharge it was the order the Trust was asking the judge to make. The following subsection of the Act (s. 16(8)) gives two examples in particular, she said, of why a judge might decide to discharge an order – but they are just examples, and there are many other situations when a judge might decide to make an order to discharge a Deputyship.
Leading counsel for the mother (John McKendrick KC ) said the Trust’s interpretation of the statute was wrong. He argued that s.16(8) of the Mental Capacity Act 2005 means that the Deputy must be found to have acted improperly before their Deputyship can be revoked – specifically that the Deputy has behaved (or proposes to behave) in a way that contravenes the authority of the Deputyship or is not in the protected party’s best interests. If that’s the correct interpretation of the law, then the judge must hear evidence about the mother’s behaviour and only if he were to find (on the balance of probabilities) that her behaviour meets the conditions specified in s.16(8) could he lawfully discharge the Deputyship. The earlier sub-section of the Act (s.16(7)) says that judges can discharge “orders” – not that they can revoke the appointment of a Deputy.
So, both lawyers referred to the same section of the Mental Capacity Act 2005 (s.16) and focussed on the same subsections (s.16(7) and s.16(8)), and read out the same words from it in court. But they interpreted the meaning of those words in different ways.
This is interesting because, at heart, it’s a dispute about what the law actually means. When people say that a judge has “broken the law” (something I see a lot on social media), it’s often unclear what exactly they mean. But here was a barrister in court arguing that it would not be lawful for the judge to discharge the mother from her role as a Deputy unless he first determined the “facts” and found that she had acted counter to her son’s best interests – which the judge was not proposing to do.
One difficulty with finding that a judge has “broken the law” is that it’s up to the judge to decide on the proper legal meaning of the legislation. It is always ultimately “for the court and no one else to decide what words in a statute mean”[3]. A judgment can be appealed – and if the appeal is successful, then there is a decision by a more senior judge as to what exactly the first judge got wrong.
My interest in writing about this hearing is in the way these two lawyers presented arguments about what the words in the statute (the Mental Capacity Act 2005) actually mean, and how the statute should be interpreted and applied in practice. I was watching “statutory interpretation” in action.
The conventional account of the work judges do is that (as the UK judiciary put it in “Rule of Law” video on UK Judiciary YouTube channel), “A judge’s role is not to make law, but to uphold and apply the laws made by Parliament. The laws must be interpreted and applied by the judges to different cases….”
Usually there isn’t much argument in court about the correct interpretation and application of the statute. In this case, the parties took opposing positions. It was a lesson in statutory interpretation.
How to do statutory interpretation
There’s a lot of public information about deputyships[4] – but only the wording of the Mental Capacity Act 2005 has the standing of statutory law, as an Act of Parliament passed by the legislature.
“Simpler” explanations made for public consumption paraphrase the statute in an effort to make the law more accessible. But this rewording often introduces errors or inconsistencies, or results in ambiguities that are not there in the original statute. Even judges are advised to avoid using alternative wording for statutes: they should “seek to avoid substituting one set of words for the set of words used by the legislature simply for the purpose of explaining what the legislature meant”[5].
In deciding their cases, judges will always use the statute – in this case the Mental Capacity Act 2005 – because (it is said) that wording reflects and embodies the will of Parliament.
But the will of Parliament is not always crystal clear from the words used, and it can sometimes be challenging to decide how they apply to particular cases before the court. It’s commonly claimed that “the legal meaning of a statutory text is the meaning one infers the legislature intended to convey in uttering the semantic content of the text in the particular context of enactment”[6] (where “one” means “the judge”).
Statutory interpretation is the subject of academic legal theory as well as part of the everyday practical craft of lawyers and judges, and it has been suggested (not necessarily to the detriment of the legal profession) that “the commentators’ grand theories contrast with the more ad hoc, fact- based reasoning of the practicing lawyer”[7].
There are some basic principles or “rules” of statutory interpretation that judges are supposed to use to establish the legal meaning of a statute. First they must start with the “plain meaning” of the words in the statute, presumed in general to be unambiguous. If there is any ambiguity, then the words in the Act must be read in the context of the Act as a whole, and if they’re still open to more than one interpretation, the meaning chosen should be one that fits the purpose of the Act.
Here’s how A Dictionary of Law describes the rules.[8]
The principal rules of statutory interpretation are as follows:
(1) An Act must be construed as a whole, so that internal inconsistencies are avoided.
(2) Words that are reasonably capable of only one meaning must be given that meaning whatever the result. This is called the literal rule.
(3) Ordinary words must be given their ordinary meanings and technical words their technical meanings, unless absurdity would result. This is the golden rule.
(4) When an Act aims at curing a defect in the law any ambiguity is to be resolved in such a way as to favour that aim (the mischief rule).
(5) The rule ejusdem generis (of the same kind): when a list of specific items belonging to the same class is followed by general words (as in “cats, dogs, and other animals”), the general words are to be treated as confined to other items of the same class (in this example, to other domestic animals).
(6) The rule expressio unius est exclusio alterius (the inclusion of the one is the exclusion of the other): when a list of specific items is not followed by general words it is to be taken as exhaustive. For example, “weekends and public holidays” excludes ordinary weekdays.
(7) The rule in pari materia (on the like matter): when a prior Act is found to be “on the like matter” it can be used as an aid in construing the statute in question (R v Loxdale (1758) 1 Burr 445, 447 (Lord Mansfield); 97 ER 394).
(8) The rule noscitur a sociis (known by its associates): when a word or phrase is of uncertain meaning, it should be construed in the light of the surrounding words (Bourne v Norwich Crematorium Ltd [1967] 2 All ER 576 (Ch) 578).
“Interpretation, Rules and Principles of Statutory Interpretation, A Dictionary of Law
Ambiguities may occasionally be resolved by referring to external sources; for example, the intention (or purpose) of Parliament in regard to a proposed Act, as revealed by ministers during its passage through Parliament, may be discovered by reference to Hansard (Pepper v Hart [1993] AC 593 (HL). However, the House of Lords has ruled against the existence of an alleged social policy rule, which would enable an ambiguous Act to be interpreted so as to best give effect to the social policy underlying it.
Judges can also use other external aids to construction e.g., explanatory notes published with the Act, Codes of Practice, textbooks by legal experts, and published judgments showing how other judges – especially more senior judges in the Court of Appeal or the Supreme Court – have interpreted the same words. The court sometimes relies on the “settled practice” of the courts – i.e. the way courts have almost always interpreted the law in the past[9]). The Human Rights Act 1998 imposes upon judges an interpretive obligation to construe legislation in a way that is compatible with the Convention rights, so far as it is possible to do so – and to make a “declaration of incompatibility” to signal to Parliament the importance of changing the law if a human-rights compatible interpretation isn’t possible.
In relation to older statutes, it is sometimes claimed that the law is “always speaking”, so that it is permissible to apply an ‘updating’ interpretation to the wording of the act to account for advances in (especially) medical science, and communication technology. Words that seem quite straightforward at first glance can turn out to be problematic in unanticipated modern contexts. For example:
- “In the presence of”: Legislation requires that a valid will, must be signed “in the presence of two or more witnesses” (s.9(c ) Wills Act 1837) – but what exactly does that mean? Must everyone be in the same room, or – and this became an important concern at the height of the COVID-19 pandemic – can they stand in the garden and watch the person signing the will through the window; or can they be “present” to each other via a videoconferencing link? (For more information about how these questions have been addressed – and some engaging history – see the excellent blog posts by lawyers Charlotte John here and Barbara Rich here and here.)
- “Treatment”: The British Pregnancy Advisory Service (BPAS v the Secretary of State for Health [2011] EWHC 235) applied to the High Court for a declaration that misoprostol (the “abortion pill”) was not “treatment” as the term was used in the Abortion Act 1967 – with the effect that women would be able to self-administer it at home, rather than attend a “hospital” or “clinic” as required by the Act. At the time the Act was passed, the normal method of abortion was surgical. So-called “early medical abortion” (the termination of pregnancy of up to 9 weeks) only became an alternative with the licensing of the relevant medication, which is administered on two occasions a day or so apart. The primary concern of Parliament in passing the Act was to ensure that (surgical) abortions were carried out safely and in proper conditions, since the “treatments” administered were invasive and had potentially serious complications. Parliament could not have had in mind, when it passed the Act, the new situation with twenty-first century “abortion pills”, and BPAS argued that the judge should apply an “updating construction” to ensure that the Act keeps up with medical science.[10]
It may be a “fairy tale” to claim that judges always act in accordance with these principles of statutory interpretation (especially in the hardest cases heard in the most senior courts) – but even the critics accept that “everyday life in the practice of the law often involves looking at a statutory phrase which has never been tested in court and applying the ‘literal’ rule, perhaps with a dash of ‘mischief’ or a ‘golden touch’”.[11] I think that’s pretty much what I saw in this case – along with some (contested) appeals to the authority of previous judgments and the interpretations of textbook authors.
The ’literal’ rule – plain meaning, unvarnished words and commonsense
All the lawyers in this case argued that the plain wording of the statute, “unvarnished”, exactly as written, was perfectly clear. They just disagreed with each other about what it meant.
The Trust relied on s.16(7) to say the court could discharge the mother’s deputyship without establishing wrong-doing on her part.
The mother relied on s.16(8) to say her deputyship could only be discharged if the judge found wrong-doing.
For the Trust[12], Rosie Scott quoted s.16(7):
s.16(7)An order of the court may be varied or discharged by a subsequent order.
This, she said, is “brisk and clear” and gives the court “a general power” to vary or discharge its own orders, including Deputyship Orders. The court’s power is not limited to the matters set out in s.16(8): “there is no restriction within it that other subsections must be satisfied”. She drew attention to the words, “may, in particular” in s.16(8):
s.16(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—
(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or
(b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.
The word “may” (she said) is “empowering language – not restrictive. It is not equivalent to saying the court “shall only‘”.
For LL’s mother (and Deputy), John McKendrick KC also focussed on the language of the statute – in particular the two words “order” (in s.16(7)) and “appointment” (in s.16(8)). He too argued that that there was no ambiguity in the statute – although he did acknowledge that “the point of distinction between an appointment and an order is not necessarily something a judge would immediately alight on”. His position was that “parliament has clearly set out a difference between orders and appointments” and that the two subsections are referring to different things. On this reading, s.16(7) gives the court the power to vary or discharge orders – but not the power to vary or discharge a Deputyship appointment.
Given the great care the court takes when appointing a Deputy, said John McKendrick KC, Parliament has set out a higher threshold for varying or discharging these appointments. Appointments can only be revoked if the Deputy has behaved badly as specified in s.16(8)(a) and s.16(8)(b). Those subsections of the Act clearly lay out the necessary pre-conditions that must be established before a Deputyship appointment can be varied or discharged. They are the “gateway” conditions that must be satisfied before a Deputyship can be revoked.
Counsel for the mother[13] said: “Plainly if Parliament had intended to grant an unfettered discretion to revoke a deputyship order there would have been no need to draft s.16(8). Section 16 must be read as a whole and in a common-sense manner.”
In response, Rosie Scott acknowledged the “interesting distinction” in the language of the statute, but pointed out that the way the court gives effect to the appointment of a Deputy is via an “order” – so if (as s.16(7) says) an “order … may be varied or discharged by a subsequent order”, then a Deputyship order may be varied or discharged by a subsequent order revoking it – and 16(8) simply gives two examples “in particular” of reasons why the court may decide so to do, giving the court clarity as to when it might choose to exercise s.16(7) without artificially restricting its powers.
Finally, she argued that the court “must, by way of sheer common-sense, have the power to revoke deputyship in circumstances beyond those two examples” – for instance, where a Deputy wants to withdraw due to ill-health, retirement, change of employment etc. “These circumstances would require the court to either vary the order or to discharge the deputy, but do not involve the deputy behaving in a way contravening their authority or acting not in P’s best interests or proposing to do so”. In such circumstances[14], clearly the deputy is removed for reasons that go beyond those specified in s.16(8).
Construing the Act as a whole
The parties agreed that s.16 needed to be interpreted in the context of the Act as a whole – in particular s.16(3) which spells out:
“The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests)” (16(3) MCA 2005).
Counsel for the Trust, Rosie Scott, interprets 16(3) – in conjunction with 16(7) – as meaning that the Deputyship can be discharged if the court decides it’s not in LL’s best interests to continue to have his mother as his Deputy (and without evidence of her wrongdoing).
She also drew attention to what the Act says about the court’s powers to revoke a Lasting Power of Attorney. In s.22(4) it says that the court can:
“(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney”
But this subsection only applies:
“… if the court is satisfied
(a) that fraud or undue pressure was used to induce P—
(i) to execute an instrument for the purpose of creating a lasting power of attorney, or
(ii) to create a lasting power of attorney, or
(b) that the donee (or, if more than one, any of them) of a lasting power of attorney—
(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or (ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests. (s.22(3))
The grounds for revoking someone’s appointment as an Attorney (in s.22(3) (b) (i) and (ii)) are worded identically to the grounds for revoking a Deputyship (in s.16(8)) – but in the case of the Lasting Power of Attorney section, “they are plainly the ONLY grounds that give the court access to powers in (4) in prevent registration or revoke the instrument/LPA”. So clearly it was possible (says the Trust) to draft the legislation in a narrow way to ensure that the court only had powers in certain circumstances, and that’s what’s been done in relation to Lasting Powers of Attorney. But not in relation to Deputies, where s.16(7) gives a general power.
The different words used in the Act about revocation in relation to Deputies and revocation in relation to Attorneys show, says the Trust, that Parliament intended Deputies and Attorneys to be treated differently – with a much wider scope for the court to revoke Deputyships (which are created by the court in the first place) compared with revocation of the Attorney role (which is created by the protected party). “This distinction is consistent with one of the key goals of the legislation – that is the protection of P’s autonomous decision-making. P must have been directly involved in the creation of an LPA but may not have been involved in the appointment of a deputy.” (Trust)
Counsel for the mother also drew on an analysis of the Act as whole to argue that throughout s.16 there is a distinction drawn between “orders” and “appointments”. Both orders and appointments are referred to in ss. 2, 5, and 6 (always orders first and appointments second) – thereby treating them as different things.
(2) The court may—
(a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or
(b) appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or matters.
…and..
(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
… and…
(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the court for an order, directions or an appointment on those terms.
“The point hasn’t been argued in any other cases, but linguistically it must be right”, said counsel for the mother. “The language of s.16 shows that Parliament has clearly set out a difference between “orders” and “appointments”, and the test for varying or discharging orders (16(7)) is different from the test for revoking or varying the powers conferred on a Deputy (16(8)). Because very careful consideration has been given by the court to appointing a deputy, the test for revocation is a heightened test.”
External aids to statutory interpretation
(a) Explanatory notes
Counsel for the Trust referred to §69 of the Explanatory Memorandum to the Act as supporting the position that the court can discharge a Deputyship order. It reads as follows:
“The court can always vary or discharge its orders and subsection (8) provides that it has power to take away or alter a deputy’s powers if the deputy is overstepping his powers or not adhering to his best interests obligations.” (Explanatory Notes s.16 MCA 2005)
Counsel for the mother said this “takes matters no further”.
(b) Case law
The case law is largely about decisions to appoint a Deputy and there’s relatively little about the principles involved in discharging one.
The lawyers looked at what published judgments they could find to see whether other judges in earlier cases had relied on 16(7) to discharge deputies (i.e. discharged them simply on the grounds that discharge was in the best interests of P) or whether they’d invoked 16(8) (i.e. discharged them on evidence of wrong-doing).
Counsel for the Trust and counsel for LL pointed to
- Long v Rodman and Others [2012] EWHC 347 (Ch) – the judge said: “Power to vary or discharge the order appointing Mr Long is conferred by section 16(7) of the Mental Capacity Act 2005. Since decisions under the Act must be made in the best interests of the patient (see section 1(5)), the ultimate question must be as to what is in Mrs Rodman’s best interests.”
- EXB v FDZ & Ors [2018] EWHC 3456 (QB)- the judge likewise says: “Any order or direction made under section 16 ‘may be varied or discharged by a subsequent order’: section 16(7). It follows that the court can revisit its order, particularly if there is a material change of circumstances.” (§40)[15] Counsel for LL said: “there’s no suggestion of any wrongdoing whatsoever in that order: if the court can only vary or discharge a deputyship if s.16(8) applies, then the court has no power to do that”.
In his position statement, counsel for the mother cited EB v RC [2011] EWHC 3805 (COP) in support of the proposition that “the relevant powers for the purposes of revoking or altering a deputyship are narrower than the discretion that informs a decision to appoint a deputy in the first place”. This judgment sets out principles based on a Court of Appeal decision in New South Wales, including: “The burden of proof is on the person seeking a change in the status quo”, and “It is normally necessary for the person seeking the change to show some reason why the court should remove the existing deputy and appoint someone else in his or her place”.
Counsel for the Trust pointed out, however, that in removing RC as deputy (and replacing him with IB), “the judge doesn’t invoke s16(8): see §47” (which reads: ‘I am going to allow IB’s application to be appointed as his mother’s deputy in place of RC, as I believe this is in EB’s best interests”).
Judge: Yes, thank you. So, it’s just the best interests test applied, rather than a finding of poor behaviour.
Trust: Absolutely. There are several cases like this one where the judge finds revocation in P’s best interests without finding that RC has behaved badly. There are no such findings.
(c) Published authorities – Heywood and Massey
Counsel for the Trust said that the Trust’s view of s.16(7) was borne out by published experts: “This is also how s.16(7) is interpreted by authorities Heywood and Massey[16] (written by Master Lush and David Rees KC, members of Rules Committee)”.
Judicial Decision
The judge will “give a formal judgment in due course” as to the proper statutory interpretation of the Act in relation to discharge of Deputies – but he announced his decision at the end of the submissions on the first morning of the hearing. In his judgment, the proper interpretation is that revocation of a Deputy appointment can be made on the basis of P’s best interests, and without evidence of wrongdoing by the Deputy.
According to the judge, it is “wrong to draw a distinction between an appointment and an order – if there is a distinction, it is a distinction without a difference. Any appointment is made pursuant to an order.” Moreover, “the case law is not such as to lead me to determine that s.16(7) is not an appropriate means by which deputyship can be discharged” he said. He referred to the need for “an agile and responsive court” which is able quickly to make orders promoting P’s best interests, and “it would not be consistent with that if the court could not discharge an order when the situation required it”.
Having decided that the law does permit the court to discharge a Deputy in the protected party’s best interests, and without having to prove that the Deputy did anything wrong, he then gave an oral judgment in which he discharged the mother as Deputy. He also refused permission for an appeal (on the grounds that it had no real prospect of success) and refused permission for a stay on the discharge of the deputyship pending the outcome of permission to appeal from a Tier 3 judge.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
Acknowledgments: With thanks to all the advocates in this case for their Position Statements, and special thanks to Rosie Scott whose eloquent exposition of statutory principles inspired me to write this piece, and who also sent me typed up notes from her oral argument.
Footnotes
[1] I watched the morning of 5th December 2023 – which was wholly devoted to the matter of the Deputyship – but was unable to attend during the afternoon. On 6th December, the hearing didn’t start until 12 noon (the parties were meeting outside of court instead) and the day consisted entirely of the judgment about the Deputyship and then arguments about permission to appeal and then delaying (“staying”) the discharge of the Deputyship pending the outcome of an appeal to a more senior judge (also refused). On 7th December, there was a short afternoon hearing (only) devoted to making arrangements for the next hearing in March 2024. As usual, we are not allowed to audio-record hearings, so my notes are based on contemporaneous touch-typed notes which are as accurate as I could make them but are unlikely to be verbatim.
[2] I’m not sure why the discharge of the Deputyship hasn’t already been decided and this matter is being heard more than a year after the application. Maybe because there was an earlier decision to ‘fact find’ about the mother’s alleged wrong-doing as a necessary precursor to making a decision about the Deputyship?
[3] Black-Clawson International Ltd. v Papierwerke Waldhof-Aschaffenberg A.G. [1975] A.C. 591, 637 (Lord Diplock).
[4] For example, the government’s own webpage (“Deputies: Make decisions for someone who lacks capacity”) and explanations from the Alzheimer’s Society (“Deputyship for people living with dementia”), Mind (Mental Capacity Act 2005: Deputies), The Challenging Behaviour Foundation (“Deputyship”), Mencap (“Appointees, deputies, and power of attorneys”) and other bodies.
[5] E.W. Thomas (2005) The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles. Cambridge University Press (p. 267)
[6] R. Ekins, “Statutes, Intentions and the Legislature: A Reply to Justice Hayne” (2014) 14 O.U.C.L.J. 3 quoted p.37, Bailey, D (2022) “Settled practice in statutory interpretation”, Cambridge Law Journal 81(1): 28-49)
[7] Eskridge, WN & Frickey, PP (1989/1990) “Statutory interpretation as practical reasoning”, Stanford Law Review 42: 321-384.
[8] I’ve never heard this much Latin in an actual courtroom! These rules also seem to assume an infallible and omniscient legislature.
[9] “…where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach” (LJ Carnwath in the Court of Appeal, quoted in Bailey, D (2022) “Settled practice in statutory interpretation”, Cambridge Law Journal 81(1): 28-49. Bailey’s article explores the uses to which the “settled practice” principle is put, and the weight assigned to it.)
[10] Greasley, K. (2011) “Medical abortion and the ‘golden rule’ of statutory interpretation’, Medical Law Review, 19(2): 314–325. Parliament has subsequently changed the law to permit both mifepristone and misoprostol to be self-administered at home.
[11] Simon Lee, Judging Judges. London: Faber and Faber: Chapter 2, and the quotation is p. 18.
[12] On behalf of LL, via his litigation friend, Nia Gowman agreed with the Trust that the “ordinary reading” of s.16 made it “very clear” that “… whilst there are two specific circumstances under section 16(8) MCA 2005 where the Court can remove a deputy, the Court’s power to do so is not confined to these circumstances…”. There is “no ambiguity” in the statute.
[13] The father was separately represented by, Kriti Upadhyay. His counsel agreed with and endorsed the legal framework on Deputyship as outlined by John McKendrick KC for LL’s mother.
[14] For an example of a Deputy wishing to withdraw, see Re A {2002] 1 WLR per Hayden J
[15] John McCormack KC objected that this was not the “ratio” of the judgment (i.e. part of the reason for the court’s decision). “That’s true,” said Rosie Scott, “but it’s very persuasive. This is a knowledgeable judge – and Ms Butler-Cole, now KC, was acting as advocate to the court”.
[16] I haven’t read it – but if anyone’s interested it costs £963.84 on Amazon.
Promoting Open Justice in the Court of Protection 
“Having decided that the law does permit the court to discharge a Deputy in the protected party’s best interests, and without having to prove that the Deputy did anything wrong, he then gave an oral judgment in which he discharged the mother as Deputy.”
But I don’t see where the judge decided that discharging the order was in P’s best interests.
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