The Court of Protection is a Court which is dedicated to making decisions on financial matters or welfare issues (such as where someone might live or what care they might receive) for people who cannot make decisions at the time they need to be made i.e. because they lack mental capacity to do so. You can find out more about the Court of Protection by clicking here to read a previous article.
Who is ‘P’
The person at the centre of proceedings in the Court of Protection, who lacks capacity, is referred to as ‘P’.
One of the central principles guiding the Court of Protection (as set out in the Mental Capacity Act 2005) is to ensure that P effectively participates (as far as reasonably practicable) in any act done for him and any decision affecting him.
This is codified in rule 1.2 of the Court of Protection Rules 2017, which requires the court in every case to consider whether it should make directions to secure P’s participation.
This article explores how we, as lawyers, help to ensure that P is able to effectively participate in their own legal cases.
Appointed roles to represent P
Because P will not have the capacity to instruct us directly, a litigation friend will need to be appointed by the court to instruct us instead. A litigation friend could be P’s family member or close friend (so long as they are not a party in the case as well). They would need to let P’s lawyer know about P’s wishes and feelings about the case and the decision that the court is being asked to make.
In many Court of Protection cases we are instructed by the Official Solicitor, who is a publicly appointed court official and acts as litigation friend where there is nobody else who can take on that role. The Official Solicitor will not meet P personally. Instead the court asks the lawyers appointed by the Official Solicitor to meet with P and record their wishes and feelings. The lawyer will then report this back to the court within a witness statement.
Sometimes instead of a litigation friend being appointed for P, the court will appoint an accredited legal representation (ALR). This will be a lawyer who has been approved by the Law Society to take on this special role for P. It will be the ALR’s job to obtain P’s wishes and feelings directly and report them back to the court, and then also make decisions directly about the case.
P’s wishes and feelings
The matter of P’s wishes and feelings is vital in Court of Protection proceedings. Not only is it important for P’s lawyer to obtain P’s wishes and feelings about the issues in the case, but we also need to know their wishes and feelings about how they want to take part in the proceedings.
To effectively ascertain P’s wishes and feelings about their participation, P’s solicitors should consider how the court process and the issues before the court can be explained to P. This will include consideration of P’s communication abilities, including whether these may be enhanced by communication aids or Speech and Language Therapy input, and whether P might be reassured by having a familiar person, such as a family member or carer, present.
In practice, we begin by gathering information from people involved in P’s care and support arrangements to develop a complete picture of P’s communication abilities. We often use toolkits to help our clients with learning disabilities or autism articulate their wishes and feelings. This can include, among other things, using a ‘talking mat’ with visuals to assist P communicate, creating ‘life story booklets’ to help P prepare for a meeting with us ahead of time, or accompanying P with someone who can use Makaton. We use questioning strategies for our clients with conditions like dementia to allow them to voice their wishes while also giving them plenty of time to reflect. We would visit P wherever they feel most comfortable and, this could be their place of residence, such as a care home, a hospital setting, a supported living facility, school, their own home or their family home.
Attendance at a hearing or hearings
P’s solicitors should ask P about whether they wish to attend the hearings in their matter. If possible, P’s solicitors should explain what this might mean, including whether the hearing is remote or in person, what will happen on the day and what support they might need. If the hearing is in person and P would prefer to attend remotely, or if this is considered better for P due to health or mobility concerns, P’s solicitors can liaise with court staff to advise them of P’s wish to attend and make practical arrangements for P. Other considerations such as P’s care and support needs, whether P will need breaks in proceedings, or whether P’s attendance is not required for the duration of the hearing, should also be taken into account on a case-by-case basis. A decision as to how and to what extent P should be participating in the proceedings will be made taking into consideration P’s best interests.
It should also be explained to P that regardless of their attendance at court, their lawyers will present their wishes and feelings to the Judge and other parties in the matter, based on what P has told their solicitor about their wishes and feelings in relation to the issues in the case.
If P does not want to attend hearings, but would like to speak with the Judge, their solicitor should endeavour to inform the Judge and court staff of P’s wish as soon as possible, providing details of practical considerations such as where the meeting would take place, P’s communication needs, and whether anyone else might be attending the meeting, so that the Judge/court staff can determine whether such a visit is practically possible. Where an in person meeting is not possible, P’s solicitors may consider whether the meeting could take place remotely.
In our experience, clients who attended their court hearings or met the Judge in private (either in court or at their place of residence) have valued being able to express their wishes and feelings directly to the Judge. The Court of Protection then has a full understanding of P’s own views before making important decisions about their welfare. This shows why it is so important for lawyers to facilitate P’s effective participation in their own COP case.
How we can help ?
The issues relating to incapacity are often challenging, emotional, and stressful. We recognise this, and we understand the difficulties faced by people with mental incapacity and those who care about them.
To find out more about how TV Edwards could help if you need support applying to the Court of Protection contact us at [email protected] or speak to a member of our Social Welfare team on 020 3440 8000.
Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.
