In Cumbria County Council v A  EWCOP 38 a Professional Deputy, Mr Andrew Cusforth, sought to be appointed as Property and Affairs Deputy in seven cases where Cumbria County Council no longer wished to act as Deputy for the individuals concerned.
Cumbria County Council supported the applications confirming that the Council wished to relinquish the Property and Affairs Deputyships as the particular cases were eligible for NHS Continuing Care and did not meet their criteria set to determine if they would consent to act as a Deputy, the criteria included:
- the individual suffering from an enduring mental illness;
- the individual having a contract or involvement with the Council; and
- there being no other willing or able applicant’s to act as a Deputy for the individual.
Despite agreement by both parties, the Court was required to determine the proper approach to be taken when a Property and Affairs Deputy wished to be discharged.
Mr Justice Hayden confirmed that where a Deputy wishes to discontinue in the role, an application must be made to the Court, stating:
“it is, to my mind, axiomatic that the withdrawal of the Deputy's consent to act is not, in itself, determinative of the decision to discharge. The decision is for the Court.”
The Mental Capacity Act 2005 does not make specific provision for the removal of the Deputy. However, Section 19 of the Mental Capacity Act 2005 identifies the circumstances in which they can be appointed and the range and extent of their duties.
Section 19(3) of the Mental Capacity Act 2005 stipulates that “a person may not be appointed as a Deputy without his consent”. Mr Justice Hayden commented that this provision makes it unambiguously clear that consent is a prerequisite to appointment.
Mr Justice Hayden held that Louise Bradbury & others v Ian Paterson & others  EWHC 3992 (QB) applied. Therefore, the Deputy's withdrawal of his consent to act was not sufficient to effect his discharge; that was a decision for the Court.
The Court had to exercise its discretion reasonably when deciding whether to discharge a Deputy who no longer wished to act. Two main considerations for the Court were:
- the Court’s approach when a Deputy who has previously consented to act now wishes to discontinue; and
- the extent that the Court should consider Cumbria County Council's compliance, or otherwise, with Section 149 of the Equality Act 2010 when considering a Deputy's application to withdraw.
There had been a suggestion before the Court that it could examine whether the approach taken by Cumbria County Council in identifying groups of people where it no longer wished to act as Deputy complied with Section 149 Equality Act 2010. Cumbria County Council argued that the Court had no power to compel it to continue as Deputy. The Council claimed that section 113 and section 114 of the Equality Act 2010 prevented the Court from considering whether it had complied with its Section 149 public sector equality duty.
Mr Justice Hayden held that they were unable, within its statutory remit, to grant any public law remedy and therefore it was misconceived to ask whether the Court could review the extent of the Local Authority's compliance with its Section 149 equality duty. However, although the Court does not have any power to remedy any failure by a local authority to protect people from discrimination, they do not have to disregard such failure.
Pursuant to Section 49 of the Mental Capacity Act 2005 the Public Guardian filed a report which highlighted the stark reality that the professional Deputy would cost the individuals concerned more than twice the sum charged by the Local Authority over a three year period.
Mr Justice Hayden confirmed that the relevant factors when considering an application by a Deputy to be discharged from the role may include:
- any conflicts of interest;
- for example, if the Protected Party has a potential claim against the authority, and where that claim cannot properly be investigated by the local authority deputy.
- the value and complexity of the estate of the Protected Party concerned; and
- where the Protected Party has modest assets, it will generally be desirable for a Local Authority to act, rather than a professional deputy, owing to the difference in rates charged; and
- where the Protected Party has high value assets, it will often be desirable, and not disproportionate, for a professional deputy to act
- the Protected Parties’ wishes and feelings;
- the Protected Parties wishes and feelings if he/she were to oppose the Local Authority acting as deputy.
- the impact on the Protected Party of either granting or refusing the application.
The Court confirmed that these are merely indicators and not an exhaustive list. However, the Court stressed that the Court would consider whether the application is consistent with the objectives of the Mental Capacity Act 2005 and the guide would always be that person's best interests, including their financial interests.
Mr Justice Hayden confirmed that if the application appeared to be driven by arbitrary or discriminatory criteria, perhaps to save costs, then, applying the principles of the Mental Capacity Act 2005, the Court would take those criteria into account to whatever degree was appropriate when making its decision. Mr Justice Hayden emphasised that:
“This will not be in consequence of a public law style review of compliance with Equality legislation, but rather the application of the principles of the MCA. The issue here is not one of jurisdiction (see N v A CCG  UKSC 22), but of how the application should be approached within the framework of the Mental Capacity Act 2005.”
The test cases before Mr Justice Hayden have helpfully clarified the position and the considerations that the Court will take into account. The decision has made it abundantly clear that where a Deputy wishes to discontinue in the role the application will not be granted automatically and an application must be made to the Court.
Decisions in each of the individual cases will now be taken, in accordance with the guidance given in judgment.