All about P – Enabling people to fully participate in Court of Protection proceedings

19 Dec 2017

A finding that a person lacks the mental capacity to make particular decisions does not mean that his or her wishes can be ignored. Taking care to identify what the person (P) at the centre of a Court of Protection (CoP) case thinks about the decisions that are being taken is absolutely crucial, and there ought to be no limit to the weight that can, in a given case, be attached to those wishes and feelings when decisions are made as to P’s ‘best interests’.

The CoP is where the most difficult or contentious best interests decisions of are likely to be made. But courts can be forbidding and unwelcoming places, with formal processes of procedure, language and etiquette often putting participants off attending altogether. On the other hand, the CoP possesses wide case management powers that allow it to be flexible and thoughtful in the way it allows P to take part in the most appropriate way. And the court also has a duty to make reasonable adjustments to its processes to take account of the needs of disabled people who appear in cases before it.

For the most part all this can be achieved without significant extra cost or time. It just needs a bit of thought and planning. So what can lawyers do to best enable P to actively take part in the court process, so that he or she can be placed at the centre of a decision making process that is – after all – supposed to be all about them? Here is a (non-exhaustive) list:

  • Is there anyone who can assist with showing you the best way to communicate with P? A family member will usually be best, but consider also an Independent Mental Capacity Advocate (IMCA), teacher, Speech and Language Therapist (SALT), social worker or support worker. Or can you use the help of one of these people to assist you in discussing the issues with P?
  • Find out what P knows about the decision-making process. Is it clear that this dispute is being decided by a court? What does P understand that to mean? Is there a fear that ‘court’ means something bad or that by engaging with it or attending that must mean P is in trouble? Is that a fear you can allay?
  • Find out what P wants to say about the issues, and try to work out whether he or she wants to say it directly to the judge. Is this a case where P wants to communicate a view to the court as to the substantive issues? Or simply to observe what’s happening? Or both? Or just to tell you his or her views and let you pass them on to the court?
  • If P wants to see the judge to communicate his or her views, then how best can you achieve this? At court, or in P’s home, or somewhere else?
  • If at court – when is that going to best take place? What kind of hearing will it be and will P be expected to wait around a lot? Can you avoid that happening if it would be a problem? Can P come and view the court beforehand? Who will be in the room when P discusses the case with the judge? If at home, how are you going to plan this with the judge?
  • Does P want to also sit through the other aspects of a hearing where legal submissions might be made and evidence given? If so what steps can or should be taken to facilitate this?
  • Should someone else come to court to sit with P to provide reassurance whilst P’s lawyers are engaged in the issues the court is dealing with? If so, who should this be: family member, support worker, paralegal or trainee?
  • Does P want to go further than simply just having a say on the issues direct to the judge – and actually give evidence, perhaps about some disputed fact? That might be rare in CoP cases but it certainly is not unheard of. If it is appropriate then what steps will have to be taken to enable it to happen? What special measures can and should the court take to make sure that the evidence is as clear as possible?
  • Should there is a ‘ground rules’ hearing, or at least a full consideration of these issues within a directions/case management hearing in advance of P’s attendance at court?
  • Can the judge/lawyers consider using the information at theadvocatesgateway.org to aid planning and to make sure that communication with P during any meeting/evidence is effective?

See further the excellent and detailed report ‘The Participation of P in Welfare Cases in the Court of Protection’ by Lucy Series, Phil Fennell, and Julie Doughty for more information.

Ben McCormack is a barrister at Garden Court North Chambers and is an experienced practitioner who regularly acts for individuals in hearings before the CoP.

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