Decision making in respect of health and welfare

Welfare and health decisions

The Court of Protection (the court) has the power under section 16 of the Mental Capacity Act 2005 (MCA 2005) to make a decision or decisions as to the personal welfare of a person lacking capacity (P) to take the decision for themselves. The court also has the power to appoint a deputy to make the decision (see Deputies—Appointment, duties and powers—overview for further details), although health and welfare deputies are only relatively rarely appointed.

Alongside the powers set out above, the court also has the power to make a declaration as to the lawfulness or otherwise of any act done or yet to be done in relation to P to make the relevant decision. For these purposes, an 'act’ includes an omission and a course of conduct.

As a very general rule, questions relating to health and welfare matters are more usually raised by way of applications for declarations rather than for decisions. Such declarations are most commonly sought where the treating clinicians need confirmation as to whether it is lawful to provide or withhold treatment

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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