CL v Swansea Bay University Health Board & ors [2024] WTLR 813

Analysis

Mrs Justice Theis DBE was concerned with the appeal by CL (the appellant) from the order of HHJ Porter-Bryant dated 6 December 2023 (Swansea Bay University Health Board v P [2023]) which discharged a previous order appointing the appellant as LL’s deputy for personal welfare. The appellant was LL’s mother. The respondents to the appeal were the Swansea Bay University Health Board (the first respondent), LL by his litigation friend AB (the second respondent), LL’s father (the third respondent) and Swansea City Council (the fourth respondent). The fourth respondent took no active part in the appeal. The appellant sought permission to appeal and, if permission was granted and the appeal was successful, for the matter to be remitted for rehearing. The first and second respondents opposed the appeal. The third respondent opposed the appeal save for a limited aspect of the third ground of appeal.

LL was 22 at the time of the appeal hearing with a number of diagnoses including significant learning disability, atypical autism, attention deficit hyperactivity disorder, hypermobility/low muscle tone, bowel problems, neuralgia and hydrocephalus, with 2.5 shunts in place for five arachnoid cysts in the brain. LL lived with the appellant until July 2021, when he was moved to a care home and an application was made to the Court of Protection to authorise the move.

The first respondent was responsible for funding LL’s care and support and the fourth respondent was the responsible local authority.

In July 2018 the appellant had applied for an order appointing her as a personal welfare deputy for LL. Both the first and fourth respondents were notified of the application, but neither objected, nor attended the hearing. On 2 April 2019 the Court of Protection made an order under s16(2)(b) Mental Capacity Act 2005 (MCA) appointing the appellant as LL’s deputy to make personal welfare decisions he was unable to make for himself, subject to the conditions and restrictions set out in that order, which included those set out in ss20(2), (5) and (7) MCA. The order also specified that the appellant did not have authority to make decisions on LL’s behalf if she knew or had reasonable grounds for believing that he had capacity in relation to the matter.

In July 2021 the Court of Protection proceedings were commenced. In October 2022 the first respondent made an application pursuant to s16(8) MCA to revoke the deputyship order founded on allegations about the appellant’s behaviour. The first respondent questioned whether a fact-finding hearing would be necessary to adjudicate on the deputyship issue. At the hearing of 26 October 2023 the court considered it necessary to refocus and refine the findings sought and found it would have little difficulty in concluding that it would be in LL’s best interests to live in an otherwise suitable placement, such that a fact-finding hearing was not necessary and the application could be dealt with by way of written submissions. Revised findings and responses were filed subsequently.

At the pre-trial review on 24 November 2023 the first respondent indicated that instead of pursuing fact finding it would seek to put in place a protocol for community contact and medical appointments. On 1 December 2023 the first respondent filed a skeleton argument which changed the basis of the application from a revocation under s16(8) to a discharge under s16(7). The application was resisted by the appellant. The judge granted the application, discharged the deputyship order and made case management directions. The appellant sought permission to appeal.

The appellant submitted that there was a compelling reason under r20.8(1)(b) Court of Protection Rules 2017 (COPR) to consider s16(7) and (8) MCA and how they related to each other, as there had been no consistency of approach in case law as to which provision applied on an application for discharge of a deputyship order, with the provisions being used interchangeably.

The following grounds of appeal were advanced:

1. (1) the court had erred in law by relying on s16(7) MCA to discharge the deputyship order;
2. (2) the court had erred in its approach to the discharge of the deputyship, failing to recognise the difference between granting a deputyship and discharging a validly appointed one; and
3. (3) the court had failed to carry out a detailed and comprehensive analysis as to the best interests regarding the discharge of the deputyship order in respect of the evidence available.

Held (dismissing the appeal):

A number of cases had considered the provisions of s16 MCA, though none had dealt with the inter-relationship between s16(7) and s(8) MCA.

The main focus of the written and oral submissions on behalf of the appellant related to the first ground of appeal, which was based on statutory interpretation. There was no real issue between the parties as to the relevant principles of statutory interpretation, but the dispute centred on their application in this case and whether the judge had been wrong in reaching his conclusions.

The court was limited to considering:

1. (i) whether permission to appeal should be granted; and, if so
2. (ii) whether any of the grounds of appeal were established.

Permission to appeal should be given in this case on all three grounds, on the basis that the issues raised, particularly relating to the first ground of appeal, had not been expressly considered before. The cases that had considered s16(7) and (8) had not always addressed them in a consistent way. In many of those cases the court had not had the benefit of the detailed legal argument it had had in the instant case.

Turning to the substance of the appeal, the court could only interfere with the first instance judge’s decision if it was demonstrated that it was wrong in accordance with r20.14(4)(a) COPR, namely the court should only allow an appeal where the decision of the first instance judge was wrong.

The first ground of appeal was dismissed for the following reasons:

1. (1) The submissions made on behalf of the appellant had been significantly undermined by the concessions that an appointment of a deputy was set out in an order and that an ability to vary the deputyship order was retained in s16(7), but discharge of that order could only be done under s16(8).
2. (2) As conceded by counsel for the appellant, s16(7) should properly be interpreted as a general, broadly-worded power, which empowered the court to vary or discharge any order that it makes pursuant to any of its powers under s16, whether under s16(2)(a), s16(2)(b) or s16(5). This sensible interpretation of the word ‘order’ encompassed all actions that the court could take under s16(2), (5) or (6): orders, decisions, appointments, directions, ‘conferring powers’ and ‘imposing duties’. Any of these actions by the court under s16 were made ‘pursuant to an order’ and properly fell within the language in s16(7) MCA 2005 as being an ‘order of the court’, and so could be ‘varied or discharged’ by a subsequent order (as provided for in the section).
3. (3) The first instance judge’s conclusion that ‘[t]he words “in particular” featuring within s16(8) do not connote an exhaustive list of circumstances in which a deputyship may be revoked or discharged’ was also entirely justified.
4. (4) The appellant’s over-reliance on the scheme within the MCA to regulate deputies, to underpin their submissions regarding the interpretation of s16(7) and (8), was rejected. To accept these submissions would wholly undermine the purpose of the MCA. The justification given by the appellant of any perceived unfairness for the deputy did not stand up to scrutiny in circumstances where the deputy could fully engage and participate in the process that resulted in any decision.

The second ground of appeal failed for the following reasons:

1. (1) The first instance judge had set out the legal framework and relevant guidance for granting a deputyship and the competing contentions of the parties as to discharging the deputyship.
2. (2) The judge’s focus had been on discharge, which had been the application he had been asked to determine. He had clearly had in mind the context in which deputyships are granted but his analysis was on balancing the impact on LL of either granting or refusing the application, and the relevant competing considerations. He had gone on to consider and reject the proposed variation: the ‘appropriate approach is for consultation to be pursuant to s4(7), supplemented by the protocols’ and for there to be a collaborative approach.
3. (3) The conclusions reached were securely founded, and the judge had clearly explained reasons that had underpinned them.

The third ground of appeal was also rejected for the following reasons:

1. (1) The first instance judge had considered all the relevant matters in undertaking the best interest evaluation, he had been the allocated judge for some time, had extensive knowledge of the case and was entitled to reach his conclusions as he had had sufficient evidence to carry out a best interest analysis.
2. (2) The submission that the judge had applied an ‘off switch’ to LL’s wishes and feelings was rejected.
3. (3) The judge clearly had had in mind the alternative decision-making structure in the absence of the deputyship as he had explicitly referred to the protocols, of which he had had detailed knowledge, as providing for the appellant’s involvement in medical appointments and care planning. The judge had accepted the first and second respondents’ submissions that the usual s5 MCA and collaborative decision-making structures would apply.
4. (4) The judge had considered and rejected the proposed variation of the deputyship, concluding that it would be better for LL not to vary but to discharge it in favour of the collaborative and consultative approach preferred by the MCA overall.
5. (5) The judge had been entitled to reach each of these conclusions.

In conclusion, the first judge had been right to conclude that s16(7) provided the court with a broad discretion to vary or discharge a deputyship order and was not limited in its application, save that it was subject to the provisions of s16(3), namely the principles in s1 and s4 regarding best interests. Section 16(8) was a non-exhaustive provision which supplemented s16(7). Accordingly, permission was given to appeal and the appeal was dismissed.

JUDGMENT MRS JUSTICE THEIS DBE: Introduction [1] The court is concerned with the appeal by CL from the order of HHJ Porter-Bryant dated 6 December 2023 (Swansea Bay University Health Board v P & Ors [2023] EWCOP 67) that discharged a previous order appointing CL as LL’s deputy for personal welfare. CL is LL’s mother. …

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