Participation in Court Of Protection Health and Welfare Proceedings

Posted: 10th October 2017

In September 2017, Cardiff Law School published Welfare Cases in the Court of Protection: A Statistical Overview. http://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2017/09/Series-Fennell-Doughty-2017-Statistical-overview-of-CoP-Key-findings.pdf

This overview takes place 10 years after the establishment of the Court of Protection in 2007. There were 5 key findings including about the cost and length of proceedings and the types of cases being taken by the court.

The fifth point is a topical one and is worth focusing on:

“We found few indications that P was routinely participating in CoP welfare proceedings. We hope that following the introduction of new rules on participation this picture has changed since our research took place.”

The Court of Protection makes decisions about people who lack capacity to make decisions for themselves, the person that the decision is about is known as P in such proceedings. Welfare decisions can include those about care, treatment, residence, contact and a broad range of other areas of life. The Mental Capacity Act sets out that when a decision is made in P’s best interests, their wishes and feelings must be considered, so far as they are reasonably ascertainable.

Cardiff Law School’s report states that during their research, which involved consideration of court files, it was often not possible to tell what P’s wishes and feelings were as they were not recorded in the papers. The application forms to the Court of Protection do not contain a specific section to record P’s wishes and feelings and the report recommends that a redesign of the form would be a good start to placing P at the centre of the court proceedings.

The study took place in 2015 and it is hoped that steps are already being taken to remedy this gap.

The Court of Protection Rules have already been amended to allow for the creation of the role of Accredited Legal Representative. Applications to the Law Society’s Mental Capacity (Welfare) Accreditation opened in August 2017 and we understand that the announcement of the first cohort of Accredited Legal Representatives is imminent.

The role of the Accredited Legal Representative, at least in part, is to ascertain the wishes and feelings of P and consider the best method for them to be involved in Court of Protection proceedings that make important decisions about their personal welfare. Hopefully this will be a big step towards truly putting P at the heart of decisions that have such a major impact on their lives.