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

Conceivably, there are many reasons why a parent appointed as the deputy of their adult child can be removed from that role.  Generally speaking though, their removal is the result of decisions taken not being in the best interests of the child, contravening their most important duty under the Mental Capacity Act 2005.

Best interests

This key ‘best interests’ principle was applied by the Court 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 in itself is relatively uncommon; and
• also because the Court did not appoint anyone to act in place of AY when she was removed as a deputy.

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 had therefore 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 his care, treatment, or where he should live.

The judge removed AY, not on the basis that she held these views, but because she sought to impose them on her son, ignoring 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, and was contrary to the accepted management of autism.  Despite this, AY was not willing to change. Her removal was therefore in X’s best interests.

However, the Court did not appoint a replacement as deputy.  This decision put X, a 25 year old man, in the same position as most people in his situation.  He, together with his mother, would be consulted on treatment and other options. Going forward, a collaborative approach to decision making between all concerned, including carers and other professionals, would be taken.

Discussion

Where adult children have deputies appointed, the deputy or deputies must, whatever 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 must though be made after weighing up all options and, crucially, being willing to take on board the advice of professionals. Having done so, the decision or action must be taken based on that exercise, even if that may run contrary to your own views.

It is crucial that deputies, whether for health and welfare or for property and financial affairs, weigh up all views and do not allow their own personal beliefs, thoughts, or judgements to override all others. If in doubt, they should be willing to seek and heed advice from appropriate experts – medical professionals, financial experts, solicitors or the OPG.