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Improving participation in Court of Protection proceedings

[We are very pleased to publish here a guest article by Dr Jaime Lindsey on the recent event she coordinated at Essex Law School]

In September 2018, Essex Law School hosted an event on ‘Improving participation in Court of Protection (CoP) proceedings’. This ESRC funded workshop aimed to bring academics, practitioners and policy makers together to think about the ways that participation (particularly of P) could be improved in CoP proceedings. The one-day workshop was timely given current debates around the Mental Capacity (Amendment) bill and the recent Joint Committee on Human Rights report stating that the right to participate in proceedings should be codified. The day was split into themed sessions and provoked stimulating debate about the ways in which we might improve P’s participation. These discussions will hopefully lead to a number of suggestions being taken forward to improve participation in CoP proceedings.

The themed sessions

The event was split into four sessions, each with individual presentations followed by discussion. The first session focused on the current position with regards to P’s participation in CoP proceedings. Key issues discussed included P’s limited presence at court or participation in proceedings, as well as the ways that participation might be facilitated. Dr Jaime Lindsey (University of Essex) started the discussion off with a presentation about her qualitative research on the CoP, exploring some of the assumptions that underpin the lack of participation and how those assumptions can be addressed to encourage P to give evidence more often. This was followed by Helen Curtis (Garden Court chambers) speaking about the practicalities of P’s participation, specifically her own experiences of taking steps to facilitate participation and the role of special measures. The session concluded with Dr Lucy Series discussing her quantitative research into participation, particularly focusing on the importance of P’s ability to bring a case to court as a key aspect of participation. A number of important points raised by the speakers were picked up in the discussions. First, the assumptions that underpin P’s lack of participation. For example, the assumption that P would not make a good or credible witness can create tensions for lawyers (particularly those representing P) who may feel conflicted at putting P before the judge. Second, the length of time that CoP cases take to reach a resolution can impact on P’s ability to participate, particularly for Ps who might have degenerative conditions. Finally, concerns were raised that P’s limited participation in the CoP simply reflected the troubling reality that disabled people face in accessing justice more broadly.

In the second session of the day, we were given a judicial perspective on participation from Professor Anselm Eldergill, District Judge of the Court of Protection. His judicial insights into the issue of participation were fascinating, particularly in light of his mental health tribunal experience. Professor Eldergill noted how slow progress in this area can appear but, when put in context, many important improvements have been made. One issue he noted as a future area of interest was participation in relation to property and affairs applications given that a deputy order deprives the individual of their property rights and often authorises a third-party to sell their house, dispose of their possessions and make gifts of their property. There is also a potential for financial abuse if the person is not sufficiently involved in the decision-making process. Given that the focus of discussions so far had been on welfare cases, it was an important reminder of the wide-ranging nature of mental capacity law. He also emphasised that it is not only P’s participation that is an important issue but the ability of family members and others to participate. In fact, anybody whose rights are affected by the decision should have some involvement in the process, albeit he noted that securing representation for them is not always easy.

Participation as justice for disabled people was the theme for the next session. Gillian Loomes (University of Leeds) started with an engaging presentation on voice and mental capacity based on her mixed methods research at the CoP. Gillian emphasised the role that the court room has in giving voice to certain people as well as her own experiences of being an observer of CoP proceedings. The session concluded with a joint presentation from Andrew Lee (People First Self Advocacy) and Svetlana Kotova (Inclusion London) discussing access to justice for disabled people. A key message that came through, reinforcing something highlighted by Dr Lucy Series earlier, was the importance of accessible information. They emphasised that most people will not know what the CoP is or does, unless or until they are in court themselves. Furthermore, the inaccessibility of the system for disabled people can lead to confusion about who is making the decision and why. The personal experiences of those speaking in this session came through powerfully and reminded us why participation is such an important issue.

Finally, the day concluded with a session on the relationship between mediation and participation. First up Dr Timea Tallodi (University of Essex) provided a detailed account of the international research on mediation. She highlighted that whilst mediation will not solve the problem of participation, it can provide important insights and be a learning exercise for those involved, which can have positive effects on their ongoing relationship. Katie Scott (39 Essex Chambers) provided a useful overview of the proposed new CoP mediation scheme, which is intended to make mediation available to everybody who has issued a welfare or property and affairs case in the CoP. On the issue of participation, Katie emphasised that if there is no way of securing P’s participation in the mediation then it is not a matter that should be mediated. Concluding the presentations for the day was Charlotte May (Wiltshire Council) who presented on her research into mediation in the CoP. Her 25 mediation case studies provided insights into the ways that mediation can facilitate agreement as well as the cost savings of mediation contrasted with proceedings. In the discussion that followed, concerns were raised about what ‘agreement’ really means in mediation and the extent to which P would agree with a mediated outcome. However, many of the benefits of mediation were also highlighted such as the flexibility it provides in terms of timing and venue and the wider scope of issues that can be addressed through mediation.

Discussion

The workshop brought together a range of participants and provided a valuable opportunity to discuss ways of improving participation. Potential issues to take forward following the workshop include: improving the accessibility of information about mental capacity law and the CoP; ensuring funding is available for improving participation; expanding the use of measures to support P’s participation (such as familiarisation visits to court and other special measures); and changes to statute and/or the CoP rules to codify P’s right to participate. These issues will not be easily resolved, particularly given that two reoccurring themes were the perceived cost implications of improving participation and the inaccessibility of justice in this area. However, the workshop allowed for important conversations to develop with the aim of improving P’s participation in CoP proceedings.

Dr Jaime Lindsey

University of Essex