‘Some years ago the Court of Protection was a little known backwater of legal endeavour. The Mental Capacity Act 2005 changed all that and the work of the Court of Protection has grown enormously in the last 10 years. It is a jurisdiction of profound importance and unlike any other. It takes decisions for people who lack capacity and the decisions are often life-long and life-changing. It is a dynamic jurisdiction and change in law and practice is rapid... At the heart of the jurisdiction is the person the subject of the litigation called P.’

HHJ Rogers in  A County Council v AB & Ors (Participation of P in Proceedings)  [2016] EWCOP 41 

New research

It is vital to place the subject of proceedings (usually referred to as ‘P’) at the centre of the proceedings in the Court of Protection (‘CoP’), but there is very little research on how to achieve that. This ‘little known backwater’ conducting work of ‘profound importance’ is very worthy of research; the Arts and Humanities Research Council agrees and has funded a three-year project called Judging Values and Participation in Mental Capacity Law. It is led by Dr Camillia Kong and the project team members include one QC, three barristers and academics from the fields of law, sociology, and philosophy.

The research method includes interviews with barristers and solicitors to explore the extent to which vulnerable adults are supported to take part in proceedings about their mental capacity and best interests. If you are a CoP practitioner interested in taking part in an interview, please contact the project team (details are at the end of this article). Our findings will inform recommendations around best practicepolicy changes and training required to fulfil fundamental obligations to P.

The context

The CoP was established by the Mental Capacity Act 2005 to make financial and welfare decisions for individuals who, at the time those decisions need to be made, do not have the mental capacity to make them for themselves. Researcher Dr Lucy Series describes it as ‘an important and growing jurisdiction over decisions concerning the health, welfare and liberty of people with mental disabilities such as dementia, learning disabilities, brain injuries and mental illness’ (2017). The case summaries below exemplify the work of the CoP.

"The extent to which P is allowed and enabled to participate in legal proceedings about their capacity and best interests remains subject to judicial discretion and is likely to be impacted by the available resources."

The Mental Capacity Act 2005 in England and Wales expressly seeks to empower P to participate in decisions about their care and treatment. Sometimes this involves P meeting the judge in person. In some cases, this may not be necessary or appropriate. In others, P meeting the judge has direct impact. For example, in Wye Valley NHS Trust v B [2015] EWCOP 60, Mr Justice Peter Jackson noted that:

‘There were two excellent recent reports of discussions with [P], but there is no substitute for a face-to-face meeting where the patient would like it to happen. The advantages can be considerable, and proved so in this case. In the first place, I obtained a deeper understanding of [P’s] personality and view of the world, supplementing and illuminating the earlier reports. Secondly, [P] seemed glad to have the opportunity to get his point of view across. To whatever small degree, the meeting may have helped him to understand something of the process and to make sense of whatever decision was then made.’

Enhancing the participation of P: what the research will explore

Guidance was published in 2016 (Facilitating participation of ‘P’ and vulnerable persons in Court of Protection Proceedings by Mr Justice Charles) which aims to ‘provide helpful suggestions as to how practitioners might consider enhancing the participation of P in proceedings in the Court of Protection’. Very little is known about how it is applied. Adjustments to enhance the participation of P might involve, for example, the use of video or audio recordings, ground rules hearings, careful planning of questions and the use of an intermediary to facilitate communication.

The extent to which P is allowed and enabled to participate in legal proceedings about their capacity and best interests remains subject to judicial discretion and is likely to be impacted by the available resources. The guidance gives participation a ‘broad meaning’. How is this interpreted in practice? It says that participating ‘includes giving evidence or information to the court as part of the judicial process, whether or not as a party, but also assisting the involvement and understanding of the individual – in particular P – in that process and its outcome.’ How does P give evidence or information? To what extent is technology used to enable P to take part?

Practitioners who appear in the criminal/family courts will be familiar with special measures/measures and also with the free communication toolkits on The Advocate’s Gateway (TAG). TAG toolkits contain numerous examples of measures to support people to participate in the criminal and family jurisdictions.

As of yet there is no TAG toolkit for the Court of Protection. This is one of the things the research will seek to address. The authors are conducting a series of semi-structured interviews with practitioners who work in the CoP. The interviews will include questions about adjustments for P’s participation as well as how and when judges and practitioners meet with P.

To find out more about the project/ being interviewed, please email: judgingvalues@bbk.ac.uk. All interviews will be confidential and anonymous.

Penny Cooper was called to the Bar in 1990 and as a practitioner specialised in child abuse cases. In 2002 she moved into academia and became a professor in 2009. Her current roles include co-founder and chair of The Advocate’s Gateway, senior research fellow and principal investigator at the Institute for Criminal Policy Research and door tenant at 39 Essex Chambers.

Three case examples

A judge had to decide whether Salisbury NHS Trust was permitted to take further blood samples from, and disclose the medical notes of, Sergei Skripal and Yulia Skripal so that the Organisation for the Prohibition of Chemical Weapons could ‘assist in the technical evaluation of unscheduled chemicals’. Mr and Ms Skripal were unconscious and in hospital at the time having been exposed to a nerve agent.

The Secretary of State for the Home Department v Skripal [2018] EWCOP 6

A judge had to decide whether it was in the best interests of a twenty-seven-year-old man, who lacked capacity as a result of a traumatic brain injury, to receive stem cell treatment for his brain injury at a clinic in Belgrade, Serbia. The application for a declaration that the treatment was in his best interests was made by his mother and it was opposed by the organisation responsible for his care and treatment.

Re D (Medical Treatment) [2017] EWCOP 15

A person with dementia was removed from her home because of its unsafe conditions and her selfneglect, but she was severely unhappy with being in institutional care. She expressed how much she wished to go home. A judge had to decide whether the 89-year-old woman whose life was ‘drawing to a close’ should return home with a care package notwithstanding the risks to her physical safety and welfare.

Westminster City Council v Sykes [2014] EWCOP B9

New Court of Protection Bar Association

The Court of Protection Bar Association was established in March 2019, with Vikram Sachdeva QC as its first chair, and David Rees QC as vice-chair. It aims to protect and promote the interests of justice, in particular with reference to the Court of Protection, and brings together practitioners with a common interest in improving the substance and practice of the court. Membership is open to any member of the Bar of England and Wales interested in Court of Protection law. For further details, contact Aidan Briggs, CPBA Membership Secretary: aidan.briggs@newsquarechambers.co.uk.

Judging Values and Participation in Mental Capacity Law:  The project team and consultants are Camillia Kong (ICPR, Birkbeck College), John Coggon (University of Bristol), Penny Cooper (ICPR, Birkbeck College and 39 Essex Chambers), Michael Dunn (University of Oxford), Sara Razai (ICPR, Birkbeck College), Rebecca Stickler (ICPR, Birkbeck College), Victoria Butler-Cole QC (39 Essex Chambers) and Alex Ruck Keene (39 Essex Chambers and King’s College London). AHRC Grant Reference: AH/R013055/1.