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	England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> XY, In the Matter Of [2025] EWCOP 55 (T2) (06 March 2026) URL: https://www.bailii.org/ew/cases/EWCOP/2025/55.html Cite as: [2025] EWCOP 55 (T2)

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COURT OF PROTECTION
MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF XY

		First Avenue House 42-49 High Holborn, London, WC1V 6NP
		6th March 2026

This hearing was conducted in public subject to a transparency order made on 3^rd February 2025. The judgment was formally handed down on 6^th March 2026, all parties having been excused attendance from that hearing. It consists of 24 pages, and has been signed and dated by the judge.
The number in square brackets and bold typeface refer to pages of the "Deputies' Bundle" or, where the number is preceded by 'A', to the page of the related authorities bundle.

A. THE ISSUES

1. In the context of wider welfare proceedings, a dispute has arisen as to the extent of authority of appointed welfare deputies – specifically, whether their authority to decide whether XY should take part in particular leisure or social activities encompasses decisions about his internet and social media use.
2. From there, regrettably, a dispute has arisen in respect of how the powers of the Court of Protection, and the powers conferred by that court on a welfare deputy, interact. This question is described by AY's legal representatives as "about the normative authority of the court."

B. MATTERS CONSIDERED

3. For the purposes of this judgment (as distinct from the other substantive issues in these proceedings) I have considered all the documents in the "Deputies' Bundle" filed in advance of the hearing on 27^th November 2025, the related authorities bundle, and:

a. the COP3 assessment by Dr. Steven Carnaby dated 16^th August 2021;

b. for AY: a document headed "Grounds on behalf of XY's mother on the question of whether decisions about internet and social media are within the scope of the personal welfare deputyship order dated 23^rd March 2022", dated 10^th October 2025

c. for the public bodies:

i. a skeleton argument on behalf of the ICB, dated 24^th November 2025;

ii. a skeleton argument on behalf of the local authority, dated 18^th November 2025;

d. for XY: a skeleton argument dated 25^th November 2025.

C. BACKGROUND

4. XY is now 29 years old. He has a complex constellation of diagnoses involving autism, OCD, mild/borderline Learning Disability, PTSD, ADHD, pathological demand avoidance, interoception difficulties, and anxiety. His lack of capacity in relevant respects is agreed by all parties.
5. XY has a loving, supportive family. He lives a short distance from his parents' home, in a property which has been purchased for his solo occupation, funded by a NHSE Transforming Care property grant. His care and support package is funded by the First Applicant ICB through a Personal Health Budget. He has 24 hour support from "companions", one of whom is his brother. He has a much-loved dog.
6. Enabling XY to live his best life is a complicated matter, made more so by the inescapable presence of digital technology in the modern world. XY's interactions with such technology have been under consideration for some time:

a. in October 2019, Dr. Steven Carnaby (psychologist) assessed XY's capacity to decide on screen time, noting that "the amount of time spent on his device is putting his physical and mental well-being at risk", and concluding that he lacks such capacity;

b. in June 2020, Dr. Carnaby assessed XY's capacity to make decisions about being safe online, with specific reference to uploading sexualised content of himself, concluding that he lacks such capacity;

c. in August 2021, Dr Carnaby again assessed XY. The 'decision in question' in the assessment process is set out at section 7.1 of the COP3 form simply as "Health and welfare". In response to the standard prompt at box 7.3 of the form ("My opinion is based on the following evidence of lack of capacity:") Dr. Carnaby refers, amongst other things, to XY having posted racist comments on social media and given his full name and address to strangers online without understanding the implications and associated risks. In a report which is appended to the COP3 form he also gives an example of "XY's poor impulse control ie having an idea about something, perhaps in this case, wanting to go and see someone he had been messaging online – and acting on this idea without thinking through the consequences and implications";

d. in February 2022, Cliff Hawkins (Consultant Clinical Psychologist) assessed XY's capacity to use internet and social media, concluding that he lacks such capacity;

e. in May 2024, XY's mental health co-ordinator from the Third Respondent Trust removed all restrictions on XY's access to his digital devices – "unilaterally and without consultation", and notwithstanding that a restriction "has been put in place following best interest meetings with the previous clinical psychologist, the care provider, the care co-ordinator and family, after previous safeguarding issues." [Grounds page 3]

f. in June 2024, XY's previous social worker assessed his capacity to use the internet and social media, noting that "the amount of time spent on his device is putting his physical and mental well-being at risk" including through "poor sleeping hygiene, risks of internet scam, risks of meeting the wrong people online", and concluding that he lacks such capacity;

g. in January 2025, the Second Applicant local authority confirmed its decision not to commission Cyber Spider;

h. in March 2025, an order was made pursuant to s49 of the Mental Capacity Act 2005 directing a report from Professor Phippen;

i. in June 2025, Dr. Samantha Riches (of the Third Respondent Trust) expressed to the parties by e-mail her concerns about XY's use of the internet;

j. in July 2025, Professor Phippen's answer to questions noted that "Cyber Spider stand out – they offer bespoke packages based on the needs of the individual, and have extensive experience working with supported people."

7. In March 2023, XY's parents and brothers were appointed jointly and severally as welfare deputies for him [42].
8. There was something of a crisis in September 2023, which led to XY being detained pursuant to the Mental Health Act 1983 for about five months. His community care provider withdrew its services. For XY's return to the community his family identified an alternative provider, but things did not settle well. In an unhappy situation the Second Applicant local authority declined a suggestion that it should issue proceedings. So, in May 2024 a COP1 application was made in XY's name but instigated by his mother, AY.
9. XY is represented in these proceedings through appointment of the Official Solicitor as his litigation friend.
10. There has been a series of orders made in these proceedings, consistently since 2^nd August 2024 by District Judge Lisa Clarke. Considerable progress was made in the underlying issues about provision of care and support to XY but, following an application by AY, by order made on 14^th August 2025 Judge Lisa Clarke recused herself from further conduct of these proceedings because "it is not in the best interest of XY to alienate AY from these proceedings, or to have focus anywhere other than on XY." The matter was transferred to me.
11. At a hearing on 27^th November 2025, I made an order which (amongst other things) records that a "Cyber Spider action plan and Internet & Social Media Management Plan" has now been drawn up, and declared on an interim basis that it is in XY's best interests to have his internet and social media use regulated in line with that plan. The matter was next listed for hearing before me on 20^th February 2026. That hearing was vacated by consent with further directions, and the matter is now listed for hearing on 28^th April 2026.

D. THE WELFARE DEPUTYSHIP ORDER

12. An order was made on 23^rd March 2022 by District Judge Beckley (as he then was) appointing each of XY's parents and his two brothers, jointly and severally, as deputies "to make personal welfare decisions on behalf of XY that he is unable to make for himself, subject to the conditions and restrictions set out in the Mental Capacity Act 2005 ("the Act") and in this order."
13. The "authority" of the deputies was set out in section 2 of the order in the following terms (with the emphasis in the original):

(a) The court authorises the deputies to make the following decisions on behalf of [XY] if he is unable to make the decisions for himself when the decision needs to be made:

i. matters of day-to-day care, including diet and dress;

ii. consenting to or refusing consent to a particular medical or dental treatment / medical and/or dental examination and treatment on his behalf (subject to paragraph 2(d0(iv) below);

iii. whether he should take part in particular leisure or social activities; and

iv. to make and conduct complaints about his care or treatment.

(b) For the purpose of giving effect to any of these decisions the deputies may execute or sign any necessary deeds or documents.

(c) The deputies do not have authority to make a decision on behalf of [XY] in relation to a matter if the deputies know or have grounds for believing that he has capacity in relation to the matter.

(d) The deputies do not have authority to make the following decisions or do the following things in relation to [XY]:

i. to prohibit any person from having contact with him;

ii. to direct a person responsible for his health care to allow a different person to take over that responsibility;

iii. to make a decision that is inconsistent with a decision by the donee of a lasting power of attorney granted by him, or, if there is more than one donee, by any of them;

iv. to consent to specific treatment if he has made a valid and applicable advance decision to refuse that specific treatment;

v. to refuse consent to the carrying out or continuation of life-sustaining treatment in relation to him; and

vi. to do an act that is intended to restrain him otherwise than in accordance with the conditions specified in the Act.

E. THE DISPUTE

14. Although AY is the only one of the four welfare deputies joined as party to the current proceedings, it is said that "all four of them agree" with her position in this dispute [Grounds para 1].
15. AY's legal representatives have formulated three questions to determine the issues which they raise [Grounds, paras 4 – 8]. The proposed questions do not fully capture the issues to be determined but I am content broadly to follow this framing, addressing each question in turn as far as may be necessary to reach a conclusion which enables the parties in these proceedings to move forwards.

Q1: Does a best interests decision about XY's internet or social media use fall within the scope of the personal welfare deputyship order?

The Deputies' position

16. In the position statement filed on AY's behalf, reference is made to various academic literature suggesting that "digital communication can reduce the scourge of loneliness of people with intellectual disabilities and autistic people…… can broaden and deepen social connectiveness through friends, acquaintances and peer groups…. can increase feelings of community, social support and inclusion." The point being made is that the internet and social media can be the vehicle for positive social capital. Within the ordinary language meaning of 'leisure and social activities,' XY may pursue both "offline and online". Therefore, decision-making about the online activities should be considered to fall within the authorisation of paragraph 2(a)(iii) of the deputyship order. Such approach would be, it is said, 'logical'. So, the first pillar of the Deputies' position is that they are already specifically authorised to make decisions about XY's use of the internet and social media, pursuant to paragraph 2(a)(iii) of the deputyship appointment order.
17. More generally, I understand the Deputies also to take the much wider position that they have authority to make in respect of XY's welfare any decision which is not expressly excluded by the order. This second pillar of the Deputies' position is most explicitly stated at paragraph 29 of the Grounds document: rejecting an argument made by the public authorities, it is there said that

"The fact that there was no assessment of XY's capacity to make decisions about internet and social media use when the deputyship application was made (or when the order was granted) does not prevent the [deputies] from making lawful decisions in XY's best interests in welfare areas where he actually is or becomes unable to make decisions for himself, as long as that decision is not contained in the list of decisions over which [they] have no authority or is an "excluded decision" contained in ss.27 – 29 MCA 2005 like marriage, divorce, sex, MHA matters or voting." [underlining in the original; italics added]

18. For the purposes of this judgment I will refer to this wider approach to deputyship authority as "maximalist".
19. In support of both pillars of their position AY's legal advisers assert that, when the deputyship order was made, Judge Beckley had before him information about XY's use of the internet and social media – in particular box 7.3 of Dr. Carnaby's COP3 assessment and his report of 15^th August 2021 (as noted in paragraph 6(c) above). Following the maximalist approach, the assertion is that decision-making about XY's use of internet and social media must be included in the Deputies' authority because Judge Beckley would have expressly excluded it, if that was what he intended.
20. The Deputies rely on a decision of MacDonald J in the Family Division of the High Court – Manchester City Council v. CP [2023] EWHC 133 (Fam). They "read across" from that decision that "where P lacks capacity to make decisions about the use of internet and social media and a [welfare deputyship order] is in place, relevant best interests decisions are to be made by the [deputy/ies], and do not need to be referred to the Court of Protection for authorisation." In a very bold statement of their maximalist approach [Grounds para 32], it is asserted that "In XY's case, although only the Court of Protection can authorise his community deprivation of liberty and make any best interests decisions about contact with named individuals, all other welfare decisions are to be made by his [deputies]." (italics added)
21. The Deputies reject [Grounds paras 33 & 34] any contention that a best interests decision on internet and social media (whoever makes it) is subject to a commissioning decision by a public body. They point out that "paying for services is one option, but some families might have the expertise themselves (or know a friend with such expertise) who could implement restrictions on devices at no cost." In this particular matter, the Deputies have never suggested that a best interests decision by them about XY's use of the internet and social media would bind the local authority to spend money – they "would have sourced technical expertise for free."

Position of the Applicant public bodies

22. The First Applicant ICB is responsible for commissioning the health component of XY's care. The Second Applicant local authority is responsible for commissioning the social care component of XY's care. It has been agreed between them that internet and social media use falls within the aegis of social care provision ie to the local authority, rather than to the ICB.
23. The local authority asserts that use of internet and social media is "sui generis" [skeleton para 7]. While it may include aspects relating to P's leisure or social activities, it is not limited to those elements. Relying on the decision of Cobb J in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2, the local authority says that XY's use of internet and social media is not encompassed within the authority to make decisions about whether he should take part in leisure or social activities.
24. The local authority refers to an explanation I have previously given (in Re ACC [2020] EWCOP 9 at paragraphs 20 – 22) about how the Court uses 'templates' to make orders in broadly standard terms, asserting that the deputyship order in this matter "used the template paragraph without amendment" [skeleton para 4]. In fact, that assertion is incorrect, as can be seen by comparison between this deputyship order and the template, which is currently published at page 2418 of the Court of Protection Practice 2025^[1]. The provisions of paragraph 2(a) of XY's deputyship order have been tailored to remove three 'template' authorisations. However, the broader point is that if this issue was in fact before the Court when the deputyship order was made, "then it would have been expected that the judge would have amended the template to reflect that." The relevance of such expectation is [skeleton para 7] that "any authorisation of a deputy to make decisions on behalf of P requires express wording." In support of this approach, the local authority relies on section 16(4)(b) of the Act and the decision of Hayden J in Re Lawson, Mottram & Hopton (Appointment of Personal welfare Deputies) [2019] COPLR 371.
25. For the purposes of this judgment I will refer to this approach to deputyship authority as "minimalist".
26. The ICB's position broadly aligns with the local authority's, additionally relying on the decision of Charles J in AMA v. Greater Manchester West Mental Health NHS Foundation Trust [2015] UKUT 36 (AAC).
27. The ICB also makes some observation in its skeleton argument about the current situation:

"6(e) Whereas it may have been the source of some regret to [AY] that active and timeous steps were not taken to regulate XY's internet and social media use, this should not obscure the fact that the parties have, collaboratively, and with the supervision of the court, arrived at satisfactory best interests decisions in respect of this area of decision-making.

….

22… The fact that, in the end, the views of [AY] aligned with those of Dr Riches, the ICB and, eventually the local authority who commission the relevant services, does not imply that the authority to make those decisions should rest – by glossing the terms of the deputyship order – with [AY]…. The appropriate outcome was arrived at by precisely the collaborative approach recommended in G v E."

28. The ICB makes (briefly) an additional argument about "the commissioning of services relevant to internet and social media use". Since commissioning rests with the local authority, "it would not be appropriate for ultimate decision-making to rest with the deputies." [skeleton para 23]

The Official Solicitor's position on behalf of XY

29. The Official Solicitor considers that the deputyship order does not confer any decision-making authority in respect of XY's use of the internet and social media [skeleton para 1(a), 2- 3].
30. She relies on the decision of Cobb J in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2, where he recognised that risks associated with social media and internet use are "qualitatively different from other aspects of his welfare." Those risks "had not, by inference, been envisaged by the District Judge" when the deputyship order was made: the phrase "leisure and social activities" is "so broad and non-specific as to suggest that the District Judge had not contemplated that the deputies would decide whether and to what extent social media/internet use would be in XY's best interest. Had he done so, the [order] would have explicitly stated so, on its face."

The Law

31. Some relevant statutory provisions from the Mental Capacity Act 2005 ("the Act") bear restating:

d. Section 1 The Principles

s1(5): An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

s1(6): Before the act is done, or the decision made, regard must be had to whether the purpose which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

e. Section 4 Best Interests

s4(2) The person making the determination must consider all the relevant circumstances….

s4(7) He must take into account, if it is practicable and appropriate to consult them, the views of-

(a) …

(b) anyone engaged in caring for the person or interested in his welfare

(c) ….

(d) any deputy appointed for the person by the court

as to what would be in the person's best interests…

f. Section 5 Acts in connection with care or treatment

s5(1) If a person ('D') does an act in connection with the care or treatment of another person ('P'), the act is one to which this section applies if –

(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b) when doing the act, D reasonably believes –

(i) that P lacks capacity in relation to the matter, and

(ii) that it will be in P's best interests for the act to be done.

s5(2) D does not incur any liability in relation to the act that he would not have incurred if P –

(a) had the capacity to consent in relation to the matter, and

(b) had consented to D's doing the act.

g. Section 16 Powers to make decisions and appoint deputies: general

S16(2) The court may –

(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters; or

(b) appoint a person (a 'deputy') to make decisions on P's behalf in relation to the matter or matters.

s16(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that –

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

32. It is by now perhaps trite to note that the Act is concerned with enabling the Court to do for a person who lacks capacity what he could do for himself if of full capacity. More particularly, I note in particular the explanations of Lady Hale, who was uniquely placed to explain the workings of the Act, in N v. ACCG & Ors [2017] UKSC 22:

"27. … the 2005 Act does not contemplate as a norm the conferring of the full gamut of decision-making power, let alone parental responsibility, over an adult who lacks capacity.

…

35. So how is the court's duty to decide what is in the best interest of P to be reconciled with the fact that court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the "available options"."

33. In the relatively early days of the Mental Capacity Act 2005, the new creation of welfare deputyship was specifically considered by Baker J (as he then was) in the matter of G v. E (Deputyship and Litigation Friend) [2010] EWHC 2512 (COP) [2010] COPLR Con Vol 470. He explained it as follows:

"56. The vast majority of decisions about incapacitated adults are taken by carers and others without any formal general authority. That was the position prior to the passing of the MCA under the principle of necessity: see Re F (supra) and in particular the speech of Lord Goff of Chieveley. In passing the MCA, Parliament ultimately rejected the Law Commission's proposal of a statutory general authority and opted for the same approach as under the previous law by creating in section 5 a statutory defence to protect all persons who carry out acts in connection with the care or treatment of an incapacitated adult, provided they reasonably believe that it will be in that person's best interests for the act to be done. Crucially, however, all persons who provide such care and treatment are expected to look to the Code. …

58. The Act and Code are therefore constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care. This case is an example of what can go wrong when people do not work together. Where there is disagreement about the appropriate care and treatment, (which cannot be resolved by the methods suggested in Chapter 15) or the issue is a matter of particular gravity or difficulty, the Act and Code provide that the issue should usually be determined by the court. The complexity and/or seriousness of such issues are likely to require a forensic process and formal adjudication by an experienced tribunal.

59. To my mind, section 16(4) is entirely consistent with this scheme. Manifestly, it will usually be the case that decisions about complex and serious issues are taken by a court rather than any individual. In certain cases, as explained in paragraphs 8.38 and 8.39 of the Code, it will be more appropriate to appoint a deputy or deputies to make these decisions. But because it is important that such decisions should wherever possible be taken collaboratively and informally, the appointments must be as limited in scope and duration as is reasonably practicable in the circumstances.

61. It is axiomatic that the family is the cornerstone of our society and a person who lacks capacity should wherever possible be cared for by members of his natural family, provided that such course is in his best interests and assuming that they are willing and able to take on what is often an enormous and challenging task. That does not, however, justify the appointment of family members as deputies simply because they are able and willing to serve in that capacity. The words of section 16(4) are clear. They do not permit the court to appoint deputies simply because "it feels confident it can" but only when satisfied that the circumstances and the decisions which fall to be taken will be more appropriately taken by a deputy or deputies rather than by a court, bearing in mind the principle that decisions by the courts are to be preferred to decisions by deputies. Even then, the appointment must be as limited in scope and duration as is reasonably practicable in the circumstances. It would be a misreading of the structure and policy of the statute, and a misunderstanding of the concept and role of deputies, to think it necessary to appoint family members to that position in order to enable them better to fulfil their role as carers for P."

34. Almost a decade later, Hayden J as Vice-President of the Court of Protection broadly affirmed that approach. In Re Lawson, Mottram & Hopton [2019] EWCOP 22 at paragraph 53 he summarised "a number of clear principles" including:

(c) The starting point in evaluating any application for appointment of a [welfare deputy] is by reference to the clear wording of the MCA 2005. Part 1 of the Act identifies a hierarchy of decision making in which the twin obligations both to protect P and promote his or her personal autonomy remain central throughout;

(d) Whilst there is no special alchemy that confers adulthood on a child on his or her 18^th birthday, it nevertheless marks a transition to an altered legal status, which carries both rights and responsibilities. It is predicated on respect for autonomy. The young person who may lack capacity in key areas of decision making remains every bit as entitled to this respect as his capacitous coeval. These are fundamental rights which infuse the MCA 2005 and are intrinsic to its philosophy. The extension of parental responsibility beyond the age of eighteen, under the aegis of a PWD, may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against. The imposition of a legal framework which is overly protective risks inhibiting personal development and may fail properly to nurture individual potential. The data which I have analysed (paragraph 26 above) may, I suspect, reflect the stress and anxiety experienced in consequence of the transition from child to adult services. As a judge of the Family Division and as a judge of the Court of Protection I have seen from both perspectives the acute distress caused by inadequate transition planning. The remedy for this lies in promoting good professional practice. It is not achieved by avoidably eroding the autonomy of the young incapacitous adult;

(j) It is a distortion of the framework of Sections 4 and 5 MCA 2005 to regard the appointment of a PWD as in any way a less restrictive option than the collaborative and informal decision taking prescribed by Section 5;"

35. In the matter of AMA v. Greater Manchester West Mental Health NHS Foundation Trust [2015] UKUT 36 (AAC) Charles J, who was then Vice-President of the Court of Protection but sitting in another jurisdiction, agreed that the powers of a welfare deputy were "a central issue" (para 45). He stated (para 50) "In my view, unless the order appointing a welfare deputy expressly so provides it does not appoint the deputy to act as the patient's representative in the proceedings under the MHA. So, general powers to make personal welfare orders (even if not cut down by specific provisions as to the authority of the deputy contained in the order) cannot be relied on by a personal welfare deputy to appoint himself or anyone else as such as representative."
36. The approach to be taken in respect of issues around capacity and access to the internet was specifically considered by Cobb J (as he then was) in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2. He made the following observations:

"2. The internet and associated social media networks are particularly important for people who have disabilities, and/or social communication problems. They enable ready access to information and recreation, and create communities for those who are otherwise restricted in leaving their homes. The internet and social media networks have generally served over the years to promote social inclusion, rather than exclusion; they offer disabled users opportunities and enhance autonomy, they provide a means to express social identity, and they enable the learning of new skills, and the development of careers. The importance of creating and maintaining ready access for the disabled to electronic and digital technology is well-recognised….

4. Advances in cyber and digital technology continue to outrun society's ability to monitor or control it, and, to an extent, the law's ability to keep pace with its development. The internet is, or can be, a dangerous place; it has a dark side, where dehumanising and illegal material (including images, pseudo-images, videos, live-streaming and text) is all too readily accessible. Internet abuse is common-place and is known to take many forms: bullying, harassment, child sexual abuse, sexual grooming, trafficking, trolling and the theft or personal identify among them….

37. The proceedings in Re A concerned capacity and best interest decisions across a broad range of issues, including both A's "contact (with family and others)" and his "internet and social media use". Cobb J reached a clear view, set out at paragraphs 25 and 26, that:

"the issue of whether someone has capacity to engage in social media for the purpose of online 'contact' is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. I am satisfied that wider internet use is different from general issues surrounding care. There is a risk that if social media use and/or internet use were to be swept up in the context of care or contact, it would lead to the inappropriate removal or reduction of personal autonomy in an area which I recognise is extremely important to those with disabilities….

It seems to me that there are particular and unique characteristics of social media networking and internet use which distinguish it from other forms of contact and care…. in the online environment there is significant scope for harassment, bullying, exposure to harmful content, sexual grooming, exploitation (in its many forms), encouragement of self-harm, access to dangerous individuals and/or information – all of which may not be so readily apparent if contact was in person. The use of the internet and the use of social media are inextricably linked; the internet is the communication platform on which social media operates. For present purposes, it does not make sense in my judgment to treat them as different things. It would, in my judgment, be impractical and unnecessary to assess capacity separately in relation to using the internet for social communications as to using it for entertainment, education, relaxation, and/or gathering information."

38. Issues about use of the internet and social media have also been considered in the Family Court jurisdiction, in respect of minors. In the matter of Manchester City Council v. CP [2023] EWHC 133 (Fam), MacDonald J determined that restrictions on access to the internet and social media are not measures which satisfy the objective component of 'deprivation of liberty' within the meaning of Article 5(1) of the European Convention of Human Rights, but rather matters relevant to the Article 8 right to respect for private and family life. He identified that the lawful route to imposition of restrictions lay within the ambit of parental responsibility, in that case shared by the local authority under s33(3)(b) of the Children Act 1989.

Determination

39. The 'template' of welfare deputyship orders has remained broadly the same since the Mental Capacity Act was first implemented:

a. paragraph 1 makes the deputyship appointment – "subject to the conditions and restrictions set out in the Mental Capacity Act 2005 and in this order";

b. paragraph 2 then sets out the decisions which the court authorises the deputy/ies to make (there has been some refinement of template 'suggestions' over time);

c. paragraph 3 specifies the reporting requirements for the purposes of supervision by the Office of the Public Guardian;

d. paragraph 4 provides for the deputy/ies to explain the appointment to the subject of the order; and

e. paragraph 5 sets out the right of reconsideration where the order has been made without a hearing.

40. Subparagraphs 2(c) and 2(d) of the deputyship order may be characterised as the 'negatives', in that they spell out expressly matters which the court is not authorising the deputies to do or decide for XY. All of these 'negatives' reflect what the Mental Capacity Act 2005 itself prohibits in respect of deputies:

(c) reflects section 20(1) of the Act

(d)(i) reflects section 20(2)(a) of the Act

(d)(ii) reflects section 20(2)(b) of the Act

(d)(iii) reflects section 20(4) of the Act

(d)(iv) reflects sections 20(1) and 26(1) of the Act

(d)(v) reflects section 20(5) of the Act

(d)(vi) reflects section 20(7) – (11) of the Act.

41. The specific inclusion of these 'negatives' in the deputyship appointment order may be seen effectively as a 'reminder' - for the avoidance of doubt on the part of anybody seeking to understand the order. They merely make express in the order what is the express statutory position in respect of welfare deputyship.
42. There are other provisions in the Mental Capacity Act which may be seen as 'negative' as well: sections 27 – 29 of the Act provide that "Nothing in this Act permits…" or "Nothing in this Act authorises" twelve other 'decisions' on behalf of the person lacking subject capacity. These negative provisions are not expressly referred to in the deputyship order. The reason for that is, I suggest, not drafting oversight but because these matters are not specifically to do with deputyship. The Court of Protection cannot make these decisions on behalf of a protected person either. A 'reminder' to those seeking to understand a deputyship order is less apposite.
43. From this, in my judgment, it should be quite readily apparent that the 'negatives' in a deputyship order cannot be understood as an exhaustive list. The specific inclusion of the statutory 'negatives' of welfare deputyship does not imply that the deputy can do 'everything else.'
44. In contrast, the provisions at paragraph 2(a) of the deputyship order may be characterised as the 'positives' – they positively confer on the deputy/ies legal powers in respect of XY. Without positive conferment^[2], such authority in respect of another person simply does not exist. That is what English lawyers mean when they talk of valuing 'autonomy.' The basic legal framework for welfare decision making is the collaborative decision-making process set out in sections 1, 4 and 5 of the Act, which operates defensively. The appointment of a deputy changes this underlying legal position. Deputyship is not merely an amplified voice in discussions - it is a decision-making authority. It is therefore obviously important that the 'positives' are carefully considered by the judge who makes the order, and carefully expressed in the order to minimise scope for misunderstanding.
45. When this dispute was referred to me, in recital K of an order made 'on the papers' without a hearing, I invited AY to consider that welfare deputyship appointments do not (unlike property and affairs deputyship appointments) include any positive 'general' authority: "welfare deputyship authorisations are individually tailored to each appointment. In respect of XY, the Deputies' authorisations are specified at paragraph 2 of the order made on 23^rd March 2022." That recital was intended as a prompt to consider the issue which is now articulated as Q1.
46. I have summarised the parties' differing approaches to the issue, set out above, as 'maximalist' and 'minimalist'. In my judgment, the maximalist approach must be wrong. Rephrased, it amounts to saying that an appointed welfare deputy may make any decision about P's welfare provided only that P lacks capacity to make that decision and it is not expressly excluded in the order or by the Act. Such approach is indistinguishable from saying that the fact of appointment somehow confers a general authority, which is :

a. contrary to the wording and structure of the order itself – paragraph 1(a) qualifies the appointment ("subject to…") and paragraph 2 identifies the authority;

b. contrary to the universal practice of expressly including 'general' authority in the paragraph of an order which identifies the authority of a property and affairs deputy - explicitly, unambiguously. (Since the court does that for one type of deputyship order, the fact that it does not do that for the other should be readily recognised as significant);

c. contrary to Parliament's clear rejection of 'general' welfare authority when the Mental Capacity Act was framed - as Baker J spelled out in G.v E;

d. contrary to the scheme for welfare decision-making which actually underpins the Act – a collaborative process based on wide consultation of views;

e. contrary to the specific provision of s16(4) – a decision by the court is to be preferred to the appointment of a deputy to make a decision, and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. (A moment's thought about how an order would be expressed if it were necessary expressly to exclude areas of decision-making reveals how unworkable the maximalist approach is. Inevitably, authorities would be assumed simply because it is impossible to imagine and list all the possible welfare issues that may arise, and section 16(4)(b) would be wholly disregarded);

f. contrary to respect for autonomy of incapacitated persons - as articulated by Hayden J in Lawson, Mottram & Hopton.

47. In so far as AY's representatives rely on Manchester City Council v. CP as providing "analogy" for their maximalist approach [Grounds para 32], I firmly reject their reasoning. It is not a valid argument to "read across" from a determination that restrictions on access to the internet and social media do not satisfy the objective criteria of deprivation of liberty for the purposes of the ECHR to an equivalence between parental responsibility in respect of minors and welfare deputyship. Lady Hale in the Supreme Court has made clear that not even the "full gamut of decision-making power" is equivalent to parental responsibility for adults with incapacity. It is concerning that legal representatives are still advancing such arguments.
48. The alternative, 'minimalist' approach, advanced by both public authority applicants and the Official Solicitor, is that the deputyship appointment order positively specifies the extent of the deputy's powers. In my judgment, this approach must be correct. It much better reflects the Act, the caselaw and the process of making the order. In my experience, formulation of the decision-making authority on those (relatively rare) occasions when a welfare deputy is appointed, is the key part of the judicial determination. In this matter, as should always be the case, Judge Beckley clearly considered what he included in the authority of the deputies, and what he did not.
49. Even so, the ordinary limitations of language make it impossible to draft an order so as to eliminate all possibility of uncertainty arising. As a matter of ordinary language, and understanding what actually happens when a person uses the internet and social media, it is not unreasonable for XY's deputies to ask if decisions about such use are encompassed in their authority to decide "whether he should take part in particular leisure or social activities". However, as a matter of law, in my judgment the answer to that question has been clear since Re A.
50. Cobb J clearly identified internet and social media use as distinct from other forms of contact and care. Further, he considered that it would be "impractical and unnecessary" to separate considerations of using the internet for social communications from considerations of using it for "entertainment, education, relaxation, and/or gathering information." To whatever ends the use is directed, he clearly regarded decisions about using the internet and social media as a 'sui generis' issue. Following that reasoning (as I must, and indeed am happy to), XY's use of the internet and social media must be considered separately to his other – offline - 'leisure or social activities.'
51. Having already rejected the maximalist approach, and agreeing with the public bodies and the Official Solicitor that deputyship authorisation must be specifically conferred, it follows that in my judgment XY's deputies do not presently have authority to make decisions about his use of the internet and social media. The answer to Q1 is 'no'.
52. Even though I have determined the maximalist/minimalist question against them, it may be helpful to dwell a little further on one particular part of the argument made by AY's legal representatives. They argued that the internet/social-media issue was "apparent in the application papers". In the hope of offering some assistance in this judgment to future deputyship applicants, this assertion requires further consideration.
53. The deputyship order currently being considered was made some three years after Re A was handed down. Amongst Court of Protection professionals, it was of course a decision of considerable interest. There is no basis for any suggestion that Judge Beckley would not have been aware of it. I confidently assume that he was. To what extent then did the application for appointment of welfare deputies for XY make clear that his use of internet and social media was a required consideration when formulating the authorities to be granted?
54. In the Grounds document, AY's representatives dedicate a section of their argument to this question. Under the heading "Knowledge of the court when making the deputyship order", they identify the two documents which contained some relevant reference - Dr Carnaby's COP3 assessment and his report of 15^th August 2021, as described above. I have been able to consider both of those documents but also the deputyship application documents 'holistically', because the COP1 form, two statements in support, and those documents from Dr. Carnaby have been included in the papers available to me. It is notable that the full extent of references to use of the internet and social media is one half-sentence [34] in a 6 page statement by AY amongst extensive description of disputes with and between public authorities; and three lines [92] in the 15 pages of capacity evidence.
55. Fully acknowledging that these deputyship applicants were acting in person without the benefit of legal advice (as many deputyship applicants do), and moreover making generous allowance for hindsight, it is still clear that there was insufficient basis in the application papers for the Court to delegate to a deputy decision-making authority about the important matter of what use XY may or may not make of the internet and social media. I accept the assertion made on behalf of AY that Judge Beckley would have been aware of the matters mentioned in the application papers but it does not follow that those brief 'mentions', amongst copious other material, amounted to sufficient basis for deputies to be granted decision-making authority in respect of them. They do not. The absence of 'positive' authorisation in respect of internet and social media use properly reflects the scant basis of the application.
56. Where an application is made for appointment as deputy, it will always serve the applicant well to consider carefully which decisions they seek authority to make, and to spell that out clearly in the application papers, with reasons. Commonly a direction is made requiring the applicant to file a COP24 statement doing exactly that. Also commonly, the statement received in response fails to do that. As section 16(4) of the Act makes clear, welfare deputyship is not "parental responsibility for adults". The Court must have regard to the principle that the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. Bearing this in mind, applicants – particularly where professionals are being paid to conduct the application on their behalf - are encouraged to spell out what decisions they seek authority to make, and why.
57. For completeness, one of the ICB's arguments must also be further addressed. The ICB "considers to be relevant to the question of whether the scope of the deputyship order in this case extends to internet and social media use…. [the question of] whether such decision-making authority would conflict with statutory duties or responsibilities of public bodies or would be thwarted by the commissioning and/or funding decisions of such bodies." [skeleton para 20] The ICB asserts that, since the local authority has commissioning responsibility, it would not be appropriate for decision-making responsibility to rest with the deputies. [skeleton para 23]
58. In my judgment, this argument erroneously conflates the locus of decision-making authority with the different issue of available options from which a decision may be made. A commissioning decision of a public authority may or may not define the available options. In fact, in the current case it would not: XY's family made clear in July 2025 that they have the resources, financial or otherwise, to implement technological restrictions on XY's access to the internet and social media. Commissioning responsibility may limit the range of available options but, where there is a range of options, it does not determine between them.

Application to vary the deputyship order

59. AY's secondary position, if it was determined that the deputyship order does not give to the deputies for XY the authority to make decisions about his use of the internet and social media, was that it should be varied to include such authorisation. (For the avoidance of doubt, I accept such application as having been made and dispense with any requirement under the Rules for any separate application form to be filed.)
60. The Grounds document does not set out any arguments as to why the deputies should now be given authority to make decisions on behalf of XY as to his use of the internet and social media. In oral submissions Dr. Lewis said that "it makes no sense for the family not to be the decision-maker. They are best placed to make it. They can get it right, and without delay." He articulated the frustrations of XY's family that, when they were asking for restrictions to be imposed on XY's digital access, "nothing was done". The parties may have "got there now" but it has taken a lot of time and much proactivity from AY, and "delay is anathema to best interests." It would all have been quicker if the Deputies had the decision-making authority.
61. Of the Respondents' written submissions, the local authority's most extensively address the application to vary the deputyship order. Four reasons are offered for refusing the proposed variation:

a. [para 18] in this case the matter is a complex decision, has been the subject of dispute, and is already before the Court for determination. In accordance with s16(4) of the Act, it is preferable that the Court makes the decision itself;

b. [para 19] the 'macro' decision requires an a priori commissioning decision and formulation of a plan by the public body (which the deputies are reliant on and have actively sought), so it would be impracticable for the deputies to make it;

c. [para 20] the 'micro' decisions are best taken by XY's companions as they take care of him on a day-to-day basis, within the framework of the cyber safety plan;

d. [para 22] there is no need to extend the scope of the deputyship - the consultative and collaborative process can continue.

62. In oral submissions Ms Etiebet acknowledged that it has taken time to reach the consensus which now prevails, and that there were differences between the family and the local authority at first, but "that's the point of the structure of the Act". The time has been validly used. It would have been difficult to implement a unilateral decision by the deputies – "joined up working is essential". Even with everyone now pulling in the same direction, the 'macro' and the 'micro' aspects of restrictions on XY's use of the internet and social media mean that decision-making has to take place at two different levels "and neither of them is the deputy." Refusal of the variation would not mean that the family as a supportive unit is disadvantaged, because the collaborative approach requires that they be consulted. In so far as the family has said they were not listened to, 'not agreeing with' is not the same as 'not listening.'
63. The ICB also points [skeleton para 6e] to "the fact that the parties have, collaboratively, and with the supervision of the court, arrived at satisfactory best interests decisions", such that the deputyship "ought not to be extended." Ms. Burnham orally submitted that, though AY may have been "proved right", it does not follow that the deputies should be the arbiter of the internet/social media issue. Rather, what she has demonstrated is that "an involved parent/carer pushes other decision-makers to think thoroughly, and then reach decisions collaboratively." That this has taken time is regrettable but does not mean that variation of the deputyship authorities is appropriate.
64. The Official Solicitor contends [skeleton para 1d] that "the specific risks to XY of using social media/the internet are significant. They could lead to his hard-won stability and any quality of life being seriously undermined. Consequently, the assessment of those risks in the context of his best interests rightly falls to the court, particularly given that proceedings are afoot, pursuant to s6 Human Rights Act 1998." Orally Ms. Paterson KC emphasised the gravity of the internet/social media issue for XY. An issue of such import, she urged, is more appropriately determined by the Court than by a deputy, where there can be greater forensic sophistication, including the directing of evidence as necessary. She was careful to make clear that she was "not saying never" to the proposed variation; but she was certainly saying "not now", because of the level of risk.
65. I acknowledge that AY may be entitled to say about the measures now agreed "I told you so" (although to her credit, I think she is not). I also acknowledge that her frustrations and fears about the time it has taken to reach this position are legitimate. Collaborative processes are not an easy expectation, particularly in times when public resources are stretched. However, it was very clearly not the intention of Parliament that deputyship should be a route around such real-world difficulties. The collaborative process has worked, and I have no doubt the prospects of successfully implementing what is now a 'best interests consensus' are higher for being forged this way than they would have been by deputy decision.
66. Taking into account all the circumstances of this matter, I am satisfied that it is not in the best interests of XY now to authorise his deputies to make decisions about his use of the internet and social media.

Q2: Does the Court of Protection have the power to make a best interests decision instead of a deputy who has the authority to make that decision and is willing and able to make it?

67. Given my conclusions in respect of Q1, this question is academic and any observations I make can only be obiter. Nonetheless, having heard argument, I am persuaded that it would be generally helpful for the approach of the Court to be made clear.

The Deputies' position

68. Those representing AY assert that the answer to the question should be 'no'.
69. They contend [Grounds para 42] that section 16(2) of the Act is "disjunctive. That is to say, either the court makes a best interest decision, or it appoints a deputy to do so."
70. Their argument then proceeds on the basis of omission:

a. (Grounds paragraph 42) "Nothing in the Act, the Code of Practice or authorities from the Court of Protection supports the proposition that once the court has appointed a deputy to make a best interests decision, the court can override them and make a decision itself". This assertion is supported by reference to paragraphs 30-31 and 33 – 35 of Re Lawson, Mottram and Hopton.

b. (ps paragraph 46) "There is no provision in the Act that permits the Court to re-make the decision of a deputy who has authority to make that decision and is willing and able to make it." This assertion is supported by reference to section 16(5), (6), (7) and (8), paragraph 56 of CL v. Swansea Bay University Health Board [2024] EWCOP 22, and paragraph 8.25 of the Code.

71. It is denied (ps paragraph 50) that this approach renders deputies "unimpeachable" on the basis that, if anyone considers a deputy's decision to be contrary to P's best interests "that person can notify the Office of the Public Guardian" and the Public Guardian may "make an application to the Court of Protection to vary or revoke the deputyship order ….. [but] there is no mechanism for an application inviting the court to make a best interests decision in lieu of the deputy…" (ps paragraph 54).

The public bodies' positions

72. The position of both public bodies is that the answer to Q2 should be 'yes'.
73. The ICB does not address Q2 in its written skeleton but in oral submissions relied on:

a. section 4(7) of the Act – the requirement to 'consult' a deputy implies that the Court can still make the decision;

b. section 16(7) of the Act – the Court can 'un-make' any order it has made;

c. section 16(8) of the Act – the 'in particular' indicates that the options of revoking a deputyship appointment or varying the powers conferred are not exhaustive;

d. section 20(6) of the Act – if the deputy's authority is 'subject to' such things, who is there to ensure compliance other than the Court, so the deputies approach 'defies common sense';

e. section 15 of the Act – which is not caveated along the lines of "subject to the views of a deputy."

74. The local authority relies on s16(2) and (7) of the Act, and CL v. Swansea Bay University Health Board. Its final conclusion however seems to be nuanced by parentheses – "it is therefore possible for the court to make best interests decisions where the matters were originally within the scope of the deputyship (after varying or discharging the deputyship)."

The Official Solicitor's position

75. The position of the Official Solicitor is that the answer to Q2 should be 'yes'.
76. The Official Solicitor "invites the Court to conclude that the Court remains the ultimate arbiter of P's best interests, even if a deputy has been appointed", by virtue of:

a. s4(7) of the Act – the Court is obliged to take into account of the deputy's views if it is practical and appropriate, as there are others whose views need to be considered, but "is not under any duty to defer to the deputy or to automatically accord his/her views greater weight that anyone else …. the Court is afforded discretion to reach its own decision in respect of P's best interest, even if a deputy has been appointed."

b. s6(7) of the Act – this section relates to restrictions on the 'defence' of section 5. Subsection 6 explicitly provides that the defence does not extend to a person doing an act which conflicts with a decision made, within the scope of his/her authority, by an attorney or deputy, but subsection 7 equally specifically disapplies that 'while a decision as respect any relevant issue is ought from the court." The Official Solicitor sees this as confirmation that "the ultimate arbiter of P's best interests is the Court."

c. s16(4)(a) – the stipulation that a decision by the court is to be preferred to the appointment of a deputy "implies that Parliament intended the Court to retain supremacy of decision-making. That is unsurprising, given that it is open to the Court to conduct a more forensically detailed assessment of P's best interests that the deputy."

d. s16(4)(b) – the stipulation that the powers of a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances gives rise to the inference that "the Court retains it authority in respect of decision-making. To conclude otherwise would be to leave a vacuum of decision-making in respect of an incapacitated adult, which cannot be right."

e. s16(8) – the Court's power to vary or revoke deputy's powers "suggest that the Court retains supervisory authority over the deputy and remains the ultimate decision-maker."

f. s20(2)-(7) – the restriction or limit on deputy's powers are in contrast to the Court's broader powers listed in section 17.

77. Outside the internal provisions of the Act, the Official Solicitor points to wider obligations which the Act is intended to address:

[skeleton para 7] …the Explanatory Notes to the Act … state that it "meets the state's obligations under Article 8 of the European Convention on Human Rights ("ECHR"). The protection of those rights is provided by "recourse, where necessary and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults lacking capacity. The provision of a designated court protects P's corresponding Article 6 rights. To say that a deputy's decision-making "trumps" the court's decision-making is to remove the protection of P's Article 6 rights and therefore his corresponding Article 8 rights."

Determination

78. In my judgment, the argument pursued on behalf of the deputies is wrong. Applying the standard and well-known approach to statutory interpretation (ie the text, read in context and having regard to its underlying purpose), there is no basis for drawing the conclusions they have:

a. there is nothing in the use of 'or' in section 16(2) which justifies a conclusion that, in choosing to exercise the second of its options there identified, the Court forfeits its first. The language simply does not bear the weight of that. The 'or' here simply signifies two different ways of providing for a decision on P's behalf to be made. In common language use, 'or' is not necessarily 'disjunctive' (as in, 'implying mutual exclusivity'). It can be used inclusively. For example, in the sentence "P could not read or write", the usual interpretation would be that P could neither read nor write – both skills are understood to be lacking. And the sentence "if the social worker or the solicitor knows P's doorcode, we will be able to enter P's property" is not to be understood as meaning that if both of them have the doorcode, we would be prevented from entering – each of them may have the knowledge at the same time and still access will be possible. The context is determinative. For the 'or' of section 16(2) to be interpreted as AY's representatives suggest, the context of the Act and its other provisions would have to be supportive of their conclusion.

b. the other provisions of the Act do not support the argument on behalf of AY. Section 16(5) and/or (6) speak only to orders which the Court can make, and say nothing about exclusion of its powers. Similarly section 16(7) and (8) - which are prayed in aid by both sides of the argument - both state powers of the court, positively not restrictively. I agree with the ICB that 'in particular' indicates that these provisions are not exhaustive. I cannot see in the provisions they rely on any contextual support for the position on behalf of AY. Argument by omission, in my judgment, works against AY's representatives – they cannot point to anything in the Act which clearly supports their approach.

c. the wider context of the Act, its purpose of meeting wider obligation as identified in Ms Paterson's skeleton argument (set out in paragraph 77 above), is diametrically opposed to the argument on behalf of AY. This purpose requires that the 'trump' hand should be the Court's.

d. there is nothing in the excerpts from Re Lawson, Mottram and Hopton which are relied upon by AY's representatives which can reasonably be interpreted as supportive of their conclusion. These excerpts do not consider Q2. To borrow Hayden J's phrase "[t]he judgment is simply not directed to the relevant exercise."

e. there is nothing in CL v. Swansea Bay University Health Board which can reasonably be interpreted as supportive of the conclusions drawn by AY's representatives:

i. the judgment was a decision of Theis J, Vice-President of the Court of Protection, on appeal;

ii. CL was the mother of P;

iii. in 2019 CL was appointed as welfare deputy for P with authorities including to make decisions about where he lived and making arrangements for the provision of care services (paragraph 8);

iv. in July 2021 an application was made to authorise P's move from his mother's home to a care home (paragraph 6);

v. in October 2022 the Health Board applied to revoke the deputyship order (paragraph 12);

vi. the focus of the appeal was the basis for revoking the deputyship appointment, specifically the inter-relationship between section 16(7) and (8) of the Act (paragraphs 3 and 36);

vii. nowhere in the judgment is there any suggestion that the first instance judge had been improperly considering P's residence and care arrangements before the deputyship revocation application was filed, either because a deputy already had decision-making authority or otherwise;

viii. nowhere in the judgment is there any suggestion that the deputyship order would have to be revoked or at least varied for the Court to determine P's residence and care arrangements – on the contrary, it is assumed without demur that the Court was the arbiter of that decision (for example in the extracts quoted at paragraphs 16(ii) and 34(74));

ix. nothing in the judgement, or indeed in Mr. Patel's analysis (at paragraph 56, which is what AY's representatives now rely on) of 6 different actions which the Court may take, concludes or even implies that the Court's power to make a best interests decision for P is excluded if there is a deputy willing and able to make it.

f. in so far as AY's representatives assert that there is no Court of Protection authority which demonstrates the Court making a best interests decision where a deputy has been authorised to make it, I can only conclude that they have not properly read the judgment in CL v. Swansea Bay University Health Board on which they seek to rely. In that matter, there were welfare proceedings, with the Court actively engaged in making decisions which were ostensibly within the authorities granted by the deputyship order, for some 15 months before any application was made to revoke the deputyship appointment. Such cases do not occur frequently because welfare deputyship orders are relatively rare, but in my experience the approach to the commencing application in CL is a perfectly usual illustration of the approach which has hitherto been universally taken – that the Court is the ultimate arbiter of P's best interests. If there is no published judgment which sets this out as ratio decidendi, it is more likely to be because no one has previously considered the contrary position worthy of serious argument than because we have all been mistaken.

79. So, it follows that in my judgment the Court of Protection does have the power to make a best interests decision instead of a deputy who has the authority to make that decision and is willing and able to make it. The answer to Q2 is 'yes'.

Q3: If the answer to Q2 is 'yes', in what circumstances should it do so?

80. AY's representatives describe Q3 as "a complex and significant decision. In effect it will determine the circumstances in which the decisions of deputies nationwide are defeasible." They suggest that it will have very wide-ranging implications and increase the workload of the court. They suggest that a separate listing may be required to consider this point, with the Professional Deputies Forum and the Public Guardian afforded an opportunity to make representations. In my view, this is excessive dramatisation.
81. In this matter, there is not a decision taken by the deputy/ies which requires review. If there was, in line with my conclusions above, the usual approach of the Court would apply. It is not presently appropriate to consider Q3 any further.

F. CONCLUSION

82. I recognise that enabling XY to live his best life is at times a challenging proposition, calling for dedication from many people. There is nothing which presently leads me to consider that the legal framework in which that challenge is undertaken, which has been in place for some time, should now be changed. It is to be hoped that this judgment at least brings clarity to everyone involved as to the boundaries of that framework:

a. no, a best interests decision about XY's internet or social media use does not fall within the scope of the personal welfare deputyship order in this matter;

b. no, it is not in the best interests of XY that the decision-making authority of his welfare deputies should be varied to include decisions about his internet or social media use. Those decisions are better made and implemented within the collaborative framework of the Act or otherwise by the Court;

c. yes, the Court of Protection does have the power to make a best interests decision instead of a deputy who has the authority to make that decision and is willing and able to make it, but no such necessity arises in this case.

HHJ Hilder

Note 1   And was published at page 2302 of the 2021 edition, and page 2352 of the 2022 edition, those editions together covering the period when this particular deputyship order was made, issued and received.     [Back]

Note 2   Either by the Court appointing the deputy or by a capacitous individual executing a Lasting Power of Attorney. No one suggests that either that XY has executed or that he could validly execute such an instrument.     [Back]