FAQs: Health and Welfare Decision Making by Professional Deputies Since the Case of Re ACC

1. Do you as a Professional Deputy for Property and Affairs have a role in health and welfare decision making for your client following the case of ACC & others [2020] EWCOP 9?
2. What role do you have as a Deputy where you are not the decision maker?
3. Can you as a Professional Deputy refuse to fund your client’s care package if you consider it unsuitable?
4. What can you as a Professional Deputy do if Health or Social Services exclude you from the Health and Welfare decision making process?
5. Following the judgment in ACC & others [2020] EWCOP 9 can you as a Professional Deputy for Property and Affairs make a Health and Welfare application to the Court of Protection on behalf of your client?
6. What can you do as a Professional Deputy if Health or Social Services are failing to comply with its health and welfare obligations towards their client, if they do not have specific authority to make a Health and Welfare application?
7. Can you as a Professional Deputy for Property and Affairs take legal advice on a Health and Welfare matter on behalf of your client?
8. At what stage will you as a Professional Deputy for Property and Affairs need the Court’s permission to conduct litigation?
9. What can you do as a Professional Deputy for Property and Affairs if you have already taken steps that are outside your authority?
10. Does challenging a NHS Continuing Healthcare decision come within your duties as a Professional Deputy under Property and Affairs general authority?

Do you as a Professional Deputy for Property and Affairs have a role in health and welfare decision making for your client following the case of ACC & others [2020] EWCOP 9?

Yes you do. In most cases, your client will be funding some or all of the costs of their care and support package. This means that you have responsibility for, and an interest in relation to, the financial management of your client’s care and support package. You should be consulted and involved in any best interest process that makes a decision about the nature, level and associated costs of your client’s care and support.

What role do you have as a Deputy where you are not the decision maker?

Where the decision is not one that you have authority to make, for example where your client should live or what care and treatment they should receive, the Mental Capacity Act Code of Practice requires the decision maker to consult you where it is reasonably practicable to do so. It is hard to envisage circumstances in which Health or Social Services could genuinely assert that consultation was not reasonably practicable. Consultation is particularly important where you have information about your client’s beliefs and values, wishes and feelings, as these are valuable factors in the best interest decision making process.

Can you as a Professional Deputy refuse to fund your client’s care package if you consider it unsuitable?

Potentially yes, but only as a last resort after all possible steps have been taken to reach agreement. Withholding payment should always be backed up by a public law challenge against the decision made by Health or Social Services. This might be relevant where the Health or Social Services decision-maker failed to consult with you, or unreasonably ignored your contributions to the best interest process.

You will also want to consider whether refusing to fund would be in breach of your duty to make best interest financial decisions, for example if it would leave your client with unmet needs. In the worst case scenario, Health or Social Services could refer your conduct as a Professional Deputy to the Office of the Public Guardian (OPG) for investigation, with a risk of you being removed.

What can you as a Professional Deputy do if Health or Social Services exclude you from the Health and Welfare decision making process?

If the matter is not urgent, you may be able to deal with it through informal correspondence or by following the Health or Social Services complaints procedure. You should write to the Health or Social Services decision maker, explaining your role and the reason why you should be consulted and/or why you disagree with the decision that was made. The letter should spell out the relevant sections of the Mental Capacity Act Code of Practice rather than assuming that the decision-maker is familiar with the law and guidance.

If the matter is urgent, you will need to consider whether the appropriate course of action is to threaten a Personal Welfare Pathway application to the Court of Protection. Alternatively a public law challenge can be made by sending a Judicial Review pre-action protocol letter.

Following the judgment in ACC & others [2020] EWCOP 9 can you as a Professional Deputy for Property and Affairs make a Health and Welfare application to the Court of Protection on behalf of your client?

This judgment narrows our previous understanding of the extent of your authority as a Professional Deputy. The Court of Protection (CoP) Rules allow a Deputy, including a Property and Affairs Deputy, to make a Health and Welfare application on their client’s behalf. However, HHJ Hilder was clear that the general authority within Property and Affairs Deputyship Orders does not confer authority for you to make a Health and Welfare application. This judgment makes it clear that a you will only have such authority if there is specific provision within the Deputyship Order.

What can you do as a Professional Deputy if Health or Social Services are failing to comply with its health and welfare obligations towards your client, if you do not have specific authority to make a health and welfare application?

ACC & others [2020] EWCOP 9 confirms that you have a responsibility to ensure that the decisions made by the relevant bodies in relation to the management of your client’s funds result in a lawful situation. If Health or Social Services have made a negative or unreasonable decision, you are expected to alert them to the need to take appropriate action. The further steps that you can take in a public law challenge are covered below.

Health and welfare applications, including where these cross over with funding issues, do not fall within your general authority. You are expected to bring the matter to the attention of the CoP. This will involve asking the CoP for Directions, including whether it is appropriate for you to act as Litigation Friend. You must seek specific authority from the CoP to issue and conduct the case, or to instruct another solicitor to conduct the case. If you are instructing in-house, you are required to consider conflicts of interest.

Can you as a Professional Deputy for Property and Affairs take legal advice on a health and welfare matter on behalf of their client?

Yes, in most cases seeking advice will be within the scope of your general authority and will be in your client’s best interests.

At what stage will you as a Professional Deputy for Property and Affairs, need the Court’s permission to conduct litigation?

HHJ Hilder’s judgment makes it clear that your “general authority” extends to sending, or instructing a public law specialist to send, a letter before action, and to considering Health or Social Services response to the letter before action. If you do not have specific authority to litigate, you will require the permission of the Court to incur the costs of proceeding further after the public body’s response to the letter before action.

What can you as a Professional Deputy for Property and Affairs do if you have already taken steps that are outside your authority?

You can make a retrospective application to the Court to seek approval for the steps taken and the costs incurred. There is no guarantee that the application will be approved. In such circumstances, you would be personally liable for the costs incurred which cannot be claimed from your client’s funds.

Does challenging a NHS Continuing Healthcare decision come within your duties as a Professional Deputy under Property and Affairs general authority?

Making an application for NHS Continuing Healthcare (NHS CHC) is considered ancillary to the general authority of a Property and Affairs Deputy to ensure their client receives all the statutory funding they are entitled to.

HHJ Hilder’s judgment sets out the steps that you should take where an NHS CHC application is refused and an appeal is required. You can take preliminary steps, including taking advice on the merits of potential appeal, up to, but not including, delivery of the letter of appeal. The judgement indicates that “appeal” covers a first stage request for Local Resolution with the CCG, not merely an appeal to the NHS England Independent Review Panel. The requirement to seek authority from the CoP before submitting an appeal is a significant limitation upon the work that you can now undertake.

If you are a Professional Deputy or Attorney and require expert advice and assistance on any Community Care Law matter, we can help. Contact us today on 01273 609911, or email deputyservices@ms-solicitors.co.uk.