A Court of Protection judgment has clarified a question about the scope of welfare deputies' authority – specifically, whether a deputy’s power to make decisions about a person’s involvement in "leisure or social activities" extends to decisions about internet and social media use.

The answer, confirmed by HHJ Hilder in Re XY [2025] EWCOP 55, is no. For healthcare professionals and care providers who work alongside welfare deputies, understanding the boundaries of a deputy's authority is essential to ensuring that decisions about vulnerable patients are lawful and properly made.

Background: XY's case

XY is a 29-year-old man with a complex constellation of diagnoses, including autism, OCD, mild/borderline learning disability, PTSD and ADHD. He lives on his own in a property, with a 24 hour care and support package funded by an ICB.

Multiple clinical assessments over several years found that XY lacked capacity to make decisions about his screen time, his safety online, and his use of internet and social media more broadly. Assessments recorded that XY had posted racist comments on social media, shared his full name and address with strangers online without appreciating the risks, and had acted on impulses to meet people he had contacted online without thinking through the consequences.

In March 2023, XY's parents and brothers were appointed jointly and severally as personal welfare deputies, with authority to make decisions about his day-to-day care including diet and dress, consenting to or refusing medical and dental treatment, whether he should take part in particular leisure or social activities, and making and conducting complaints about his care or treatment.

The key questions before the court

The central question was whether decisions about XY's internet and social media use fell within the deputies' existing powers. The deputies argued that online activities fell naturally within the ordinary meaning of "leisure and social activities" – both offline and online – and that their authority should therefore extend to decisions about XY's digital access.

More broadly, the deputies took the position that they had authority to make any welfare decision for XY that was not expressly excluded by the deputyship order, provided he lacked capacity in that area and the decision was not prohibited by sections 27 – 29 of the Mental Capacity Act 2005 (MCA), such as a decision to consent to marriage, divorce or sexual relations. The court described this as the "maximalist" approach.

However, the ICB and the local authority argued that internet and social media use is a distinct category and is not encompassed within the general authority to make decisions about leisure or social activities. They relied on existing Court of Protection case law, such as Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2. The public bodies also argued that any authorisation of a deputy to make decisions on behalf of P requires express wording to that effect in the deputyship order. The court referred to this as the “minimalist” approach.

What the court decided

HHJ Hilder firmly rejected the maximalist approach, finding that it amounted 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 deputyship order or by the MCA. She identified several reasons why this was wrong, including that such an approach was contrary to: 

• the wording and structure of the order itself, 
• Parliament’s clear rejection of a “general” welfare authority when the MCA was framed, 
• respect for autonomy of incapacitated persons, and 
• section 16(4) of the MCA, which states that the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable.

HHJ Hilder found that the minimalist approach must be correct. The fundamental principle is one of "positive conferment": a deputyship appointment positively confers legal powers on a deputy in respect of the person. Without express authorisation, authority over another person's welfare simply does not exist. The "negatives" listed in a deputyship order – the things a deputy expressly cannot do – cannot be treated as an exhaustive list, such that the deputy can do everything else. 

Relying on the Court of Protection's earlier decision in Re A [2019] EWCOP 2, HHJ Hilder confirmed that internet and social media use must be considered separately from other offline leisure or social activities. The online environment carries particular and unique risks, including harassment, bullying, exploitation, exposure to harmful content and sexual grooming, that are qualitatively different from risks associated with other forms of contact or care. Accordingly, HHJ Hilder held that XY’s deputies did not have authority to make decisions about his use of the internet or social media.

The judge also confirmed, on a secondary point, that the Court of Protection does have the power to make a best interests decision instead of a deputy who has authority to make that decision and is willing and able to make it. The court remains the ultimate arbiter of a protected person's best interests.

Our view: Practical takeaways for healthcare professionals

1. Always check the scope of a deputyship order carefully 

Welfare deputyship does not confer a general authority to make decisions on behalf of an incapacitated adult. The order positively specifies the extent of the deputy's powers, and those powers are individually tailored to each appointment. Before acting on or deferring to a deputy's decision, read the order carefully to confirm the deputy actually has authority over the decision in question. 

2. Internet and social media decisions require specific authorisation

Authority over health and care decisions, or "leisure or social activities", does not extend to internet and social media use. If a deputyship order does not explicitly mention internet and social media, the deputy has no authority in that domain. This is particularly relevant where care plans involve digital safety measures, device restrictions, or online monitoring – these decisions need to follow the proper best interests process if the deputy's order does not cover them.

3. Deputies cannot be treated as having a catch-all welfare authority

The "maximalist" approach – that a welfare deputy may make any welfare decision for a person lacking capacity provided it is not expressly excluded – is wrong. The specific inclusion of statutory restrictions in a deputyship order cannot be treated as an exhaustive list, and the fact that certain matters are not excluded does not imply the deputy can decide them. If you are unsure whether a decision falls within a deputy's powers, it would be sensible to seek legal advice – our team of specialist lawyers would be delighted to help. 

Our specialist mental capacity lawyers

At Browne Jacobson, we provide valuable assistance in determining the scope of deputyship orders, as well as Lasting Powers of Attorney. Please do get in touch if you require help or advice in this area. For further guidance on Court of Protection matters or welfare deputyship, please contact our Mental Capacity and Deprivation of Liberty team.