By Dr Jaime Lindsey
In this blog post, Jaime Lindsey of the University of Essex School of Law explains her recent research on the Court of Protection, carried out in light of increased transparency and openness in this jurisdiction. Her forthcoming article on the research, ‘Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection’, is available here.
Researching Participation in the Court of Protection
Participation by those at the centre of legal proceedings is a matter of justice. Whether it be court proceedings, mediation, ombudsman schemes or tribunals, participation of those at the centre of the case should be a priority. In many areas, participation is a well-established right. For example, in criminal law proceedings defendants are facilitated to participate and give evidence through special measures, and in the family context there have been strides towards improving participation for children. However, meaningful participation of those affected by proceedings has not taken hold across all jurisdictions. My research suggests that those subject to Court of Protection (CoP) litigation are routinely absent from proceedings and rarely give witness evidence. This finding also echoes much of the theoretical and anecdotal research on this issue.
The Court of Protection
The CoP is the court that deals with disputes under the Mental Capacity Act 2005 (MCA). That is the civil law framework that allows for decisions to be made on behalf of an adult who lacks capacity to make a decision for themselves. Decisions must be made in the incapacitated adult’s best interests, albeit that some decisions, such as those relating to sex and marriage, cannot be made on an individual’s behalf. The consequences of findings of mental incapacity can be life changing. A person could be prevented from engaging in sexual activity, be prevented from having contact with others or be forced to undergo medical treatment against their wishes. Cases that reach the CoP are therefore often high profile and engage difficult ethical issues.
Transparency and accessing the courts
Up until January 2016 the CoP was a private court, meaning that it was not open to the public and restrictions were placed on what could be reported. In January 2016 a transparency pilot came into effect which reversed the presumption that the court was to be held in private to allow for the public to attend hearings. This pilot was subsequently formalised in the Court of Protection Rules 2017. In 2016, I carried out qualitative research at the CoP, observing eight cases over 11 separate hearings and reviewing 20 CoP case files. I carried out the research with the approval of the Ministry of Justice and the Vice President of the CoP, rather than through the transparency pilot which was ongoing at the same time. However, I think the movement towards openness in the CoP helped me to gain access. I encountered very few difficulties in accessing cases, and court staff, participants and the judiciary were all extremely welcoming, highlighting a positive development in CoP practice in recent years.
P’s absence from proceedings
The data I obtained from the CoP was varied and provided a fascinating insight into a different sample of (mostly still) unpublished cases concerning capacity to consent to sex, capacity to marry and capacity to decide on contact with others. One particular finding from the research that I want to mention here was on the participation of the subject of proceedings, commonly referred to as P. There was no evidence in the 20 case files that I reviewed that P gave witness evidence and of the eight cases that I observed over 11 hearings, P was present on 3 occasions.
I argue in an upcoming article that P’s absence from CoP proceedings is a form of testimonial injustice, that is, a failure to value a person in their capacity as a giver of knowledge. In the cases that I observed, P’s absence was the result of a persistent assumption that she was too vulnerable to go to court or to give evidence. Furthermore, this assumption led to a perception that P lacked credibility as a witness. As a result of Ps’ perceived vulnerability and lack of credibility, the voices of the people who should be at the centre of CoP cases are routinely absent from those proceedings. This is despite the many benefits of participation and the important contribution that individual Ps are likely to be able to make to their case. In particular, I argue that it is a matter of justice that Ps are facilitated to participate in court proceedings that impact them and that a number of measures are needed to challenge the persistent assumptions that they are too vulnerable and lack credibility as witnesses. One suggestion for reform that I make in the article is for a presumption to be included in the Court of Protection Rules that P will give witness evidence in any case that reaches the CoP. That presumption could be rebutted by evidence that P lacks competence to give evidence or does not wish to participate, but it would be an important change to help focus the minds of participants on securing P’s participation.
Further research on the CoP will hopefully be carried out now that transparency and openness is at the centre of the court’s work. For example, research on a proposed mediation scheme in the CoP, which will enable best interests disputes to be mediated, should investigate the impact of mediation on P’s participation. As more research flows from this jurisdiction, it is important that it engages with wider questions of justice, including the issue of participation. Whilst participation has many intrinsic benefits, more evidence is also needed about whether P’s increased participation has any impact on the outcome of a case, and if so, what that impact might be.
About the author:
Dr Jaime Lindsey is a Lecturer in Law at the University of Essex.
 J. Lindsey (forthcoming), ‘Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection’ Social and Legal Studies, https://doi.org/10.1177/0964663918793169
 For example, see research on mediation in the Court of Protection https://ukaji.org/2017/05/03/mediating-court-of-protection-cases-summary-of-research/.