By Jaime Lindsey
Meaningful access to justice requires having the ability to participate in decision-making that will directly affect you. Yet analysis of participation in mental capacity law is relatively under-researched compared to other areas of law. This ESRC-funded workshop on ‘Improving participation in Court of Protection proceedings’ allowed those with an interest in participation and/or the Court of Protection to think through ways that participation might begin to be improved.
The workshop was hosted by Essex Law School and brought together practitioners, policy makers and academics. The key themes that emerged included the importance of accessible information about mental capacity law and the Court of Protection (CoP); the need for adequate funding for mechanisms to improve participation (such as for the use of special measures); expanding the use of measures to support P’s participation (such as familiarisation visits to court); and legal changes to codify the right to participate.
Why is participation in CoP proceedings important?
The CoP deals with disputes arising under the Mental Capacity Act 2005 (MCA). The CoP can make a declaration that a person has or lacks the mental capacity to make a particular decision. It can also make decisions on behalf of a person who is determined to lack the mental capacity to make the decision for themselves, provided that it does so in their best interests. A wide range of cases appear before the CoP, including decisions to refuse or consent to medical treatment, decisions to have contact with certain friends or family members, decisions to enter sexual or marital relationships and decisions about property and financial affairs. The CoP has the power to make decisions which can have a life changing impact. Therefore, the starting point of the workshop was that the people who will be affected by these decisions should be facilitated to participate in the decision-making process.
The event was split into four sessions, each with individual presentations followed by discussion. The sessions explored the level of P’s participation, ways of improving participation, judicial perspectives on participation, participation as a disability justice issue and the use of alternative dispute resolution to improve participation. The personal experiences of those speaking in a number of the sessions came through powerfully and reminded us why participation is such an important issue. It was also valuable to have a mix of attendees from practice, policy and with lived experience.
One recurring theme was a concern that P’s limited participation in the CoP simply reflected the troubling reality that disabled people face in accessing justice more broadly. The CoP context is certainly an area that requires attention from disability activists and scholars given the power it has to make decisions that fundamentally affect a person’s life.
Another theme was the issue of funding for participation, which was raised by some participants as being a barrier. For example, if carers are needed to attend court with the individual, who would pay for this, particularly if the person is living in a care home? Whilst funding is clearly a pervasive issue in this and other areas, participation will not always raise costs. In fact, if the individual participates from the start, proceedings may be resolved sooner.
More fundamental though is the principle that a person has a right to be heard when decisions are being taken that affect them. In other areas, such as criminal justice, the right to be heard is a cornerstone of the process. CoP decisions can have as great an impact on peoples’ lives as decisions in criminal proceedings and yet access to justice in this context remains limited. The discussions at this workshop will hopefully lead to a number of suggestions being taken forward so that individuals who are directly affected by CoP decisions can better have their voices heard.
If anybody would like a copy of the detailed report about the event then please contact me at email@example.com.
About the author:
Dr Jaime Lindsey is Lecturer in Law at the School of Law, University of Essex.
 See previous blog post on this issue for further detail, https://ukaji.org/2018/08/15/absent-voices-researching-the-role-of-p-in-the-court-of-protection/
 Albeit the CoP cannot make certain best interests decisions, for example, it cannot decide it is in a person’s best interests to have sex or marry; see s 27 MCA.