The Court of Protection recently handed down its judgment in the case of CL v Swansea Bay University Health Board & Ors [2024] EWCOP 22.
Background
The case concerned an appeal from CL, who had been discharged as deputy for personal welfare for her daughter, LL. CL had been appointed as LL’s deputy in 2019.
LL is 22 years old and has various medical conditions including a significant learning disability, atypical autism and attention deficit hyperactivity disorder. LL had 2:1 support at home and lived with CL until difficulties were encountered finding a care agency to provide his support. In July 2021 LL was moved into a care home as a temporary placement, although he remained there at the date of the appeal.
Court of Protection proceedings began in July 2021 and in October 2022 the Swansea Bay University Health Board (the Health Board) made an application to revoke the deputyship order pursuant to section 16(8) of the Mental Capacity Act 2005. Their application was founded on allegations about CL’s behaviour. They later argued that the court could simply vary an order appointing the deputy without reference to CL’s behaviour.
The law
Sections 16(7) and16(8) Mental Capacity Act 2005 (MCA) state that:
“(7) An order of the court may be varied or discharged by a subsequent order
(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—
The court at first instance discharged CL’s deputyship order.
The appeal
CL appealed the decision. She argued that the court was wrong to discharge the deputyship order without applying the test required under section 16(8).
The judge on appeal agreed with the judge at first instance, who stated that “the words ‘in particular’ featuring within s16(8) do not connote an exhaustive list of circumstances in which a deputyship may be revoked or discharged“. She confirmed that the list of reasons that a court could discharge a deputy set out in s.16(8) was not exhaustive. The court gave examples of when a deputy may be discharged for reasons other than the Deputy acting or proposing to act in a way that contravenes the best interests of the incapable person (P), including situations where P regains capacity, and the deputy wishing to stand down due to illness or retirement or other reasons.
The case therefore confirms that the Court of Protection has absolute discretion to remove a deputy and isn’t limited to situations where they are acting or proposed to act in a way that contravenes P’s best interests. Whilst a deputy can be removed if they have behaved, are behaving or are proposing to behave in a way that contravenes their authority or would not be in P’s best interests, the court retains the ability to make an order discharging a deputy if it would be in P’s best interests.
For more useful information on the Court of Protection, please see our article What is the Court of Protection?. If you have any questions or concerns arising from a topic discussed in this article, please contact Hannah McElroy or Holly Mieville-Hawkins.
