Should the court appoint a health & welfare deputy?

Following our roundtable on health & welfare deputies, Complex Injury Partner, Jamie McCabe, examines a recent case involving the Court of Protection.

In HDEB, Re [2026] EWCOP12 (T2) (04 February 2026), HHJ Beckley provided a clear explanation of the approach taken by the Court of Protection when appointing personal welfare deputies (PWDs), including when a protected person (P) lacks capacity to make welfare decisions.

Background

P was a 22-year-old young man with complex needs (autism, ADHD, oppositional defiant disorder, epilepsy – requiring 1:1 support during the day, waking night supervision and 2:1 support when displaying heightened behaviour in the community).

His mother and father made an application to be appointed as PWDs so that they could make decisions concerning medical treatment and where he should live. They were loving and caring parents who had been closely involved in providing appropriate care and doing everything they could to meet their son’s needs. There was no dispute that P lacked capacity to make decisions regarding personal welfare issues and the local authority did not oppose the order sought.

Judgment

In reaching his decision the judge paid close attention to sections 1 and 16 of the Mental Capacity Act 2005 (MCA).

This included the fundamental principle that a person must be assumed to have capacity unless it has been established otherwise. Also, in deciding whether it was in P’s best interest to appoint a deputy the court had to have regard to principles that:

  (a)   a decision by the court is to be preferred to the appointment of a deputy to make a decision, and;

  (b)   the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

The judge referred to previous case law which confirmed that part 1 of the MCA identified a hierarchy of decision making in which the twin obligations to protect P and promote their personal autonomy remained central throughout. While there was no special alchemy that conferred adulthood on a child on their 18th birthday, it nevertheless marked a transition to an altered legal status, which carried both rights and responsibilities. It was predicated on respect for autonomy of P.

The judge reminded himself that the extension of parental responsibility beyond the age of 18 and under the aegis of a PWD, may be driven by a natural and indeed healthy parental instinct, but it should be “vigilantly guarded against”. The imposition of a legal framework which was overly protective risked inhibiting personal development and may fail to properly nurture individual potential.

The starting point for the judge was P’s right to respect for his autonomy.  His disabilities meant that he was less able to exercise his autonomy, but this did not mean that his right to that autonomy should be any less jealously guarded. Sections 4 and 5 of the MCA envisaged a system of “collaborative and informal decision-making”. The views of parents had to be taken into account by any person making a best interest decision on P’s behalf. It would be virtually impossible for any such assessment to be made without consulting parents given their love and knowledge of P and the fact that they had twice moved house to be close to where he was living.

As an experienced Court of Protection judge, HHJ Beckley understood that the system of collaborative decision-making envisaged by the MCA (for example between local authority and parents) did not always run as the statute intended. He recognised that P’s devoted parents had experienced difficulty in ensuring that P was provided with an adequate residential school placement, and they had intervened to ensure that he had appropriate accommodation. They also needed to ensure P’s best interests were met when there was a frightening incident involving general anaesthetic from a new dental surgeon. Ultimately, the judge concluded that these examples provided by P’s parents demonstrated how collaborative decision-making could work in P’s best interests.

Practice points

1. This case is a clear example of how rare it is for the Court of Protection to appoint a health and welfare deputy even when an application is unopposed and P lacks capacity to make welfare decisions.
2. The court will strictly apply the principles enshrined in the MCA 2005 to protect and respect the autonomy of P. The emphasis is on the need for intelligent, collaborative decision making in accordance with sections 4 and 5.
3. It will only be in the most exceptional of cases that the court will accede to a request to appoint a PWD. In such cases, it will be normal for the PWD to be a person who is close to P such as a parent or family member with close ties of love and affection. It is unlikely that the court will find it is in the best interests of P to appoint a professional PWD unless there is no suitable family member or close person available. This is reflected in the data from the Court of Protection that illustrates the rarity of orders for the appointment of PWDs compared to financial deputies.
4. The above approach is reflected in the data from the Court of Protection that illustrates the rarity of orders for the appointment of PWDs compared to financial deputies.
5. In a personal injury claim where a claimant has suffered catastrophic injury that undermines the ability to make decisions, the court will apply the approach enshrined in Section 1 and Section 16 of the MCA 2005, i.e. assuming that P retains capacity to make decisions concerning his own health and welfare. It also means that P will not be treated as unable to make such decisions unless all practicable steps have been taken to help him to do so without success.
6. In such cases it would only be in the rarest of circumstances that a PWD would be appointed in preference to collaborative decision-making, even if P lacks capacity to make certain decisions.