In the matter of CNB

Factual and Procedural Background

The appeal concerned the discharge of the Relevant Person from wardship under the Assisted Decision-Making (Capacity) Act 2015, as amended, and the appointment of a panel decision-making representative (“DMR”). Appellant, her half-sister, had sought appointment as DMR for personal welfare decisions. [1]

The Relevant Person has schizophrenia, autism and a learning disability. Following an extended hospital admission, she moved to a residential care centre in May 2022. She entered wardship in October 2022 despite objections from her mother and Appellant; Respondent was appointed committee of her person and estate. [2][3]

Respondent obtained a legal aid certificate in the Relevant Person’s name and instructed Solicitor A to pursue discharge proceedings. Solicitor A received instructions from Respondent throughout the application. Both the Relevant Person’s father and Appellant expressed interest in acting as DMR, but Respondent supported appointment from the statutory panel. [4][5][6]

Evidence recorded the Relevant Person’s preference for her father to make decisions and remain involved in her life. Appellant separately stated that the Relevant Person wanted Appellant appointed, that they spoke daily, and that familiarity and trust helped elicit her views. [7][8][9][10]

The High Court refused requests for separate representation, discharged the Relevant Person from wardship and appointed a panel DMR for personal welfare and property and affairs. It rejected Appellant’s application for appointment. [11][12][13]

The Supreme Court granted leave to appeal, recognising the potential significance for other wards awaiting discharge. The Relevant Person and the legal aid authority became notice parties, and an amicus curiae intervened. The Relevant Person obtained representation through her DMR and attended the appeal remotely. [14]

Legal Issues Presented

1. Whether representation through a solicitor instructed by the committee adequately protected the Relevant Person’s participation and statutory rights, or whether independent representation was required. [15][16][17]
2. What obligations the committee, solicitor and court owed concerning the Relevant Person’s will and preferences, family relationships and choice of DMR. [18][19][20][21]
3. Whether the capacity declaration and DMR order were excessively broad because they covered personal welfare and property and affairs without specifying individual decisions, and whether the assessment sufficiently distinguished between decisions. [22][23][24]
4. Whether a DMR could receive powers over foreseeable decisions that did not require an immediate determination. [25][26][27]

Arguments of the Parties

Appellant’s Arguments

• Representation controlled through Respondent did not provide meaningful independent participation and created a conflict where the committee’s preferred outcome differed from the Relevant Person’s wishes. Appellant relied on statutory participation requirements, constitutional fair procedures and Articles 5 and 6 of the European Convention on Human Rights. [28][29][30][31][32][33]
• The capacity assessment and resulting order failed to identify specific decisions and unnecessarily restricted autonomy. Appellant maintained that powers should be limited to decisions actually requiring determination and challenged the absence of submissions on scope. [24][34][35][36][25]

Respondent’s Arguments

• The committee remained authorised to obtain legal aid and instruct a solicitor on the Relevant Person’s behalf. The Relevant Person, not Respondent, was the solicitor’s client; separate representation could be directed if a material conflict arose. [37][38][39][40]
• The necessary detail in a capacity declaration and DMR order depended on the evidence. Broad categories could be appropriate where incapacity extended throughout them, although narrower orders were necessary where the evidence justified a more limited finding. [41][42][43][44]

Amicus Curiae’s Arguments

• The committee could apply for legal aid, but representation had to ensure the Relevant Person’s voice was heard and her will and preferences were independently conveyed, rather than conflated with the committee’s views. [45][46][47]
• A panel DMR should be sought only after finding no suitable willing person. The Relevant Person should be heard directly wherever possible, with appropriate support. [48]
• Capacity and DMR powers should reflect the individual’s actual circumstances and retained abilities, but could cover foreseeable future decisions rather than only immediate ones. [49][50][51][52][53]

Legal Aid Authority’s Arguments

• The certificate properly issued in the Relevant Person’s name and created an ordinary solicitor-client relationship, including duties of independence, confidentiality and loyalty. The committee retained authority to initiate proceedings on her behalf. [54][55]
• Separate representation was not automatically necessary, and the legislation did not permit a second legal aid certificate for the same person in the same proceedings. [54][56]

Relevant Person’s Arguments

• The statutory scheme prioritised autonomy, dignity, and will and preferences rather than the former paternalistic best-interests approach. Reliance on the committee’s instructions risked reproducing the shortcomings of wardship. [57][58][59][60]
• The medical assessment was too broad, and DMR powers should correspond to the particular decisions the Relevant Person lacked capacity to make. [61]

Table of Precedents Cited

Court’s Reasoning and Analysis

Representation through the committee

The discharge process combines the continuing wardship structure with the protections of the 2015 Act. A ward is a “relevant person” before discharge and therefore already benefits from the statutory safeguards; the committee and solicitor cannot proceed as though the Act has changed nothing. [83][18][84]

The Relevant Person was the solicitor’s client. Nevertheless, wardship ordinarily prevented her from independently providing litigation instructions, making the committee the lawful source of instructions on her behalf. The legal aid certificate neither conferred capacity nor authorised a solicitor to act without legally sufficient instructions. [85][86][87][88][89]

The court rejected the premise that the committee and ward were necessarily opposing parties. The committee had no separate interests in the discharge application: it acted for the ward. Consequently, routine separate representation was neither required nor desirable. [90][91][92]

Modified duties under the statutory scheme

The committee’s obligation to protect the ward’s interests required instructions enabling the court to fulfil sections 8 and 38. Its own opinion was only one part of the evidence, not a position entitled to special weight. The solicitor had a professional duty to advise the committee about these obligations. [93][92][94][95][21]

The necessary material included functional capacity evidence, reasonably ascertainable will and preferences, participation arrangements, proposed decision-making supports, information about potential DMRs and relevant family or caregiving evidence. Where views differed, evidence supporting both positions had to be gathered and presented. [96][97][98]

A divergence of views did not ordinarily create a conflict requiring another legal team. Exceptionally, the court could direct the solicitor to stop receiving committee instructions and define a retainer focused on ascertaining and presenting the ward’s wishes. [99][100][101][102][103]

Will and preferences are distinct from capacity

Solicitor A incorrectly used elements of the capacity test to decide whether the Relevant Person could express will and preferences. The statutory distinction is fundamental: inability to make a legally effective decision does not eliminate preferences that must be considered and, where practicable, respected. [104][105][106]

Preferences need not be consistently expressed or objectively rational. The Relevant Person’s explanation that her father could play with her could not justify disregarding her wishes merely because it reflected her level of understanding. [107][108][109]

The court must begin with ascertainable will and preferences, although it may depart from them for good reason after considering the other statutory requirements. Different DMRs for different decisions may reconcile the person’s preferences with particular support needs; any departure should be explained accessibly. [110][111][112]

Failures in the discharge application

Respondent appeared to have selected a panel appointment too early and failed to instruct proper exploration of interested family members. No reasons were given for rejecting the father, and Appellant had to obtain a court order for access to the papers. That approach was incompatible with the statutory framework. [5][6][113][114]

The High Court lacked sufficient information to conclude that no suitable person was willing to act, the prerequisite for a panel appointment. It failed to investigate the father’s position, address preservation of family relationships, assess relevant information about the proposed panel DMR, or consider different representatives for different decisions. [63][64][115]

Although the High Court recorded the Relevant Person’s wishes, it did not explain their treatment in its ultimate decision and instead relied on the former best-interests approach. It also needed to consider how best to facilitate her participation, potentially through direct engagement during her remote attendance. [65][116]

The court attributed the committee’s and solicitor’s failures to misunderstanding the new legislation, not lack of care or commitment. The defect lay in implementing statutory obligations, rather than in the representational model itself. [117][118][119]

Scope of capacity findings and DMR powers

Sections 3 and 8 require functional, decision-specific assessment and least intervention. Medical practitioners and courts must examine relevant decisions or classes within personal welfare and property and affairs, including retained “pools of capacity”, rather than assuming incapacity across an entire category. [120][121][122][123]

The wording of section 55 did not authorise a different, blanket test for wards. “Capacity” remained decision-making capacity assessed under section 3, and the legislation permitted different findings and representatives for different decisions. [124][125][126][127][128][129]

DMR powers may extend to foreseeable future decisions, not merely immediate ones. However, section 38(9) requires powers limited to what is necessary in scope and duration; highly unlikely or irrelevant decisions should be excluded. [26][27][130][82][131]

A broad declaration is not automatically invalid. It may be justified where both the assessor and court have individually considered the range of potential decisions and found incapacity throughout the relevant categories. [132][133][134]

Here, the medical assessment considered healthcare separately, addressed practical spending abilities and relied on relevant records and discussion. Appellant produced no contrary medical evidence and identified no particular power that should have been excluded. The court therefore accepted that the assessment supported the broad declaration. [135][136][137][138]

The separate complaint about inability to make submissions on scope also lacked an adequate evidential foundation: Appellant’s counsel attended, participated and continued interacting with the trial judge after the order. The second ground consequently failed. [139][140]

Holding and Implications

The decision under appeal was to be SET ASIDE and the matter REMITTED to the High Court for a fresh decision. The statutory failures surrounding representation, participation and DMR selection justified rehearing; the separate challenge to the breadth of the capacity declaration and DMR powers failed. [118][140][141][142]

The judgment confirms that committee-based representation ordinarily remains appropriate, but must actively support the person’s participation and place all relevant evidence before the court. It also requires individualised capacity assessment and proportionate DMR powers, while permitting sufficiently justified broad orders and powers over foreseeable future decisions. [143][144][145][146][147][148][149][150]