Removal of a Deputy for Health and Welfare of an adult child

Removal of a Deputy for Health and Welfare of an adult child

There are conceivably many reasons why a parent appointed as the deputy of their adult child can be removed from that role.  Generally speaking though, they are removed because the decisions being taken are not made in the best interests of the adult child. This directly contravenes their most important duty under the Mental Capacity Act 2005.

The Court applied this key best interests principle in the recent case of AY v (1) Hertfordshire Partnership NHS Foundation Trust & Ors [2015] EWCOP 36.

This case was unusual as it involved a deputy for health and welfare which themselves are relatively uncommon and also because the Court did not appoint anyone to act in place of AY when removed a Deputy for, in this case, her son.

AY’s son, X, suffered from autism.  AY was convinced that he had developed the condition as a result of the MMR vaccine given to him as a child.  She also believed that his condition was related to a bowel condition caused by the consumption of foodstuffs containing gluten, lactose and casein.  She therefore had sought to exclude these from his diet and provide him with food supplements.  He was fully reliant on carers for food and water and was unable to make decisions about where he could live, his care or treatment.

The judge removed AY on the basis not  because she held these views but because she sought to impose them on her son and ignore the advice of professionals.  It was clear from the evidence that the restricted diet and nutritional supplements made no difference to X’s condition or symptoms.  But despite this, medical advice and the fact that her approach was in opposition to the normal treatment for autism AY was not willing to change.

Her removal was therefore, unlike her decisions to restrict X’s diet, in X’s best interests.  The Court however did not appoint a replacement deputy.  This latter decision put X, a 25 year old man, in the same situation as most people in his situation.  He, together with his mother, would be consulted on treatment and other options. A collaborative approach  between all concerned, including carers and other professionals involved in his care, to make decisions would therefore be taken.

Where adult children have deputies appointed the deputy or deputies must, despite their own views, always act in the adult child’s best interests.  This can be difficult as the deputyship can be seen as an extension of childhood parenting. Decisions though have to be made by weighing up all of the options and, crucially, being willing to take the advice of professionals. Having done so, the decision or action must be taken based n that exercise even if this may run contrary to your own views.  It is crucial that Deputies, whether for Health and welfare as above or Property and financial affairs, weigh up all  views and do not allow their own personal beliefs or thoughts to override all others.

If in doubt they should be willing to seek and heed advice including from medical staff, financial experts, solicitors or the OPG.

If you have any questions about making decisions on behalf of someone else either by way of a Power of Attorney or a Deputyship Order or you need to seek appointment as a deputy please contact Associate Solicitor James Trescothick-Martin who has experience of both and related matters in the Court of Protection.



Image by Michael D Beckwith under a creative commons licence.