Researching mental capacity disputes: The role of mediation in improving participation in the Court of Protection
By Jaime Lindsey (University of Essex)
It is important that people are involved in decisions which directly affect their lives. Research has shown many benefits of participation in decision-making processes ranging from improving the quality of the decision to achieving better outcomes.[i] For adults subject to the jurisdiction of the Court of Protection (CoP), evidence suggests that they do not always participate fully (the subject of proceedings is commonly referred to as ‘P’).[ii] The CoP can make decisions that fundamentally affect a person’s life, including decisions that a person lacks the mental capacity to, for example, have a sexual relationship, marry, have particular medical treatment or decide where and with whom to live. Despite the far reach of the CoP, there is limited research on P’s participation in CoP cases. There is even less research on P’s participation in alternative ways of resolving mental capacity disputes. The aim of the research that I am currently undertaking is to fill that gap and to find out about the extent to which mediation in particular can improve P’s participation in CoP cases.
For those who may be unfamiliar with it, mediation is a form of alternative dispute resolution. It is a way of resolving disputes that can be more informal than court proceedings. Mediation has been used in the administrative justice context in recent years, although it is less well developed here than in family and civil justice for example.[iii] There are many potential benefits of mediation including in relation to cost, informality, flexibility and the working relationship between the parties. However, the benefits in the mental capacity/CoP context require further evaluation.
There are many ways that participation in legal proceedings can be achieved. This can include legal representation, being a party to the case, providing oral or written evidence or simply attending the hearing. However, attending court proceedings, with all the formalities that is perceived to entail, can be intimidating for many people. It is possible that mediation, the format of which can be shaped by the parties involved, might be less intimidating. In turn, the use of mediation could be more facilitative of P’s participation. On the other hand, mediation may simply replicate the same challenges that arise in legal proceedings but without the benefit of judicial scrutiny.[iv] This empirical socio-legal research, funded by the Socio-Legal Studies Association (SLSA), aims to improve understanding of whether and how mediation could facilitate the participation of adults in mental capacity law proceedings and to develop an evidence base regarding the role of mediation in that context.
The research involves two empirical aspects. First, a survey of legal and mediation professionals will be carried out. The survey (which can be accessed here: https://essex.eu.qualtrics.com/jfe/form/SV_3sF0J2gqIVefu05) seeks the views of professionals who have experience of mediated mental capacity disputes. The second aspect of the research involves semi-structured interviews with non-legal/mediation professionals who have been involved in mediated mental capacity disputes. Participants in these interviews will include Ps and her supporters (such as family members, carers, social workers, advocates etc). The interviews will explore participants’ experiences of mediation and P’s level of participation in those cases from the perspective of non-legal professionals. Central to the project is the need for the voices of those directly affected by mental capacity law to be heard and anyone with direct experience of mediated mental capacity cases is encouraged to get in touch.
The research also aims to engage with broader questions about the experiences of ‘vulnerable’ participants in mediation, which may provide lessons for other areas too. For example, Margaret Doyle’s research on mediation and special educational needs dispute resolution raises many of the same issues that are likely to arise in the CoP context.[v] In particular, it must be considered that some of the benefits of mediation in other areas might not apply in the same way in the CoP, given the complexity of the relationships and issues involved in mental capacity disputes.
If anyone would like to participate in an interview for this research then please get in touch by email at firstname.lastname@example.org. Legal and mediation professionals can complete the survey here (https://essex.eu.qualtrics.com/jfe/form/SV_3sF0J2gqIVefu05).
[i] For further discussion see J Lindsey ‘Testimonial injustice and vulnerability: A qualitative analysis of participation in the Court of Protection’ (2019) 28 Social and Legal Studies 450.
[ii] V Butler-Cole, V and L Hobey-Hamsher ‘The assessment of capacity by judges of the Court of Protection’ (2016) 6 Elder Law Journal 145, L Series, P Fennell and J Doughty. The Participation of P in Welfare Cases in the Court of Protection. 2017. Cardiff: Cardiff University, J Lindsey at n1 above.
[iii] V Bondy and M Doyle. Mediation in judicial review: A practical handbook for lawyers. 2011. London: Public Law Project. V Bondy, L Mulcahy, M Doyle and V Reid. Mediation and judicial review: An empirical research study. 2009. London: Public Law Project.
[iv] Issued mental capacity cases will always require some level of judicial scrutiny as the judge will need to approve any order made.
[v] M Doyle. A place at the table: A report on young people’s participation in resolving disputes about special educational needs and disabilities. 2019. Available at: https://aplaceatthetablesend.files.wordpress.com/2019/04/a-place-at-the-table-final-report-march-2019.pdf.