Fifteen Eighty Four

Academic perspectives from Cambridge University Press


Reimagining the Court of Protection: Access to Justice in Mental Capacity Law

Jaime Lindsey


Most of us take for granted the freedom to live our lives in the ways that we choose, with restrictions on our freedom only limited by the extent to which they harm others. While we may be more used to having those free choices interfered with following the restrictions imposed during the Covid-19 pandemic, such interference was seen as an exceptional response to a time of crisis. For many disabled people, though, this is not an exceptional occurrence. As I explain at the start of my book, Reimagining the Court of Protection:

Imagine a court having the power to overrule your choices or authorise others to do so. To decide where you can live and whether you are allowed to leave that place; to decide if and who you can marry; if and with whom you can be intimate or have any contact; how your finances are handled and money spent; whether you can have a particular medical treatment; or, perhaps worse, whether you can have medical treatment forced on you against your wishes. And imagine if all this can be done, not because you have committed a crime, or done anything unlawful, but because you do not have the necessary level of mental functioning to reach the law’s required level for decision-making – you lack the mental capacity to make the decision in question.

For adults with an impairment or disturbance in the functioning of their mind or brain, they can have their choices and preferences overridden through the application of the Mental Capacity Act 2005 (MCA) to specific decisions. The Court of Protection (CoP) is the court that deals with matters that arise under the MCA, giving it huge power over the lives of disabled people. While disability is not a requirement of the MCA, the jurisdiction does mostly impact upon adults with various forms of mental disability due to the interaction of ss 2 and 3 MCA. The MCA includes clear principles which should minimise such interference, such as ‘[a] person must be assumed to have capacity unless it is established that he lacks capacity’ and that ‘[a] person is not to be treated as unable to make a decision merely because he makes an unwise decision’. Yet, as I show in the book, the law draws a clear dividing line between adults with capacity and those who lack it and, in practice, it does not always secure access to justice for those whose mental capacity is believed to be impaired. Analysis of the operation of the CoP in practice is essential given the potential consequences of findings of incapacity for an individual person subject to CoP proceedings (the ‘Person’). The aim of this book, then, is to reimagine the CoP as an institution that better secures access to justice.

Reimagining, Access to Justice and Procedural Justice

As I explain in Chapter One, the aim of the reimagining advanced in this book is to facilitate the Person to participate and give voice in proceedings; be heard on an equal evidential footing; and to have the opportunity to shape the material and institutional practices of the court. I make this argument drawing on a procedural justice theoretical framework of values, adopting a socio-legal approach drawing on original empirical data. In Chapter Two, I outline the five core values of procedural justice: respect for the individual; participation; trustworthiness; neutrality; and flexibility. These values are returned to throughout the book to show how the CoP has not always secured procedural justice as well as to highlight ways that a procedural justice response can be operationalised.

A number of examples are given throughout the book, drawing on the empirical research analysed, to highlight the access to justice problem in the CoP. For example, in Chapter Six I analyse a CoP case that I observed, H County Council V. XC, where the Person, XC, was present at the hearing. He sat with his parents at the front of the courtroom throughout, yet the judge did not speak to him at any point, nor was a British Sign Language interpreter present, which was surprising given that was XC’s method of communication. On the one hand, it was positive that XC was present in the court room, which does not often happen. However, he did not participate in any meaningful way – he was not able to communicate with the judge or understand proceedings. As I explain in the book ‘[t]hese forms of absence can all contribute to a disembodied and distorted perception of the Person, which may not reflect the reality of what she is capable of or her willingness to be involved in the case.’ Only small changes were necessary to improve access to justice for XC, thinking particularly about being flexible to his needs, respecting him as an individual and securing his participation through, for example, the presence of an interpreter. It could also have been arranged for him to meet with the judge outside of court for additional discussion about the case, have a familiarisation visit to the courtroom, and the judge could have spoken to him and/or his family directly to gather their views.

As well as accessibility in the courtroom itself, a major access to justice barrier identified in the book is the lack of accessible information about CoP proceedings available for the Person. This is important to place the Person on an equal knowledge footing and to ensure that they are informed about the court and what is likely to happen in their case, without solely having to rely on their legal representative. As I explain in the book:

This … points towards a symbolic failure of access to justice in the CoP – that the CoP administration has simply not given thought or priority to the development of accessible materials. Who is communicated with or facilitated to communicate indicates whose voices are prioritised within institutions.

Similarly, there were examples of the Person failing to participate directly at all, in one notable case, even where she expressed a sustained wish to, the Person ‘did not attend court, give evidence or meet with the judge. She was, in her absence, found to lack the capacity to marry and consent to sex.’ Also evidenced in the book are other failures to secure access to justice in various aspects of the court’s practices, including in the virtual court room, in mediation of CoP cases and in the evidential practices. That is not to suggest that there are no positive developments in the CoP since its inception; it has taken important steps towards improving transparency, for example, through increased publication of judgments and accessibility for observers. However, the book provides constructive suggestions for improvements to ensure effective access to justice for the Person in this specialist court.

Responding to the Challenge

In response to the limitations on the Person’s access to justice identified in the book, I argue that a procedural justice response requires a number of changes in the CoP’s approach. First and foremost is the requirement to place the Person at the centre of CoP processes and practices. By this I mean that when reimagining existing rules, processes and practices, the designers must have primary regard to the Person. Other stakeholders and court users should, of course, be considered, but the primary concern ought to be with the Person. Specific suggestions for reform outlined in the book include: a presumption of participation; changes to evidential rules; obtaining regular user feedback from the Person; incorporate procedural rules on mediation, which prioritise the Person’s participation; routinely publishing judgments, including in accessible forms for the Person to understand. As well as these specific reforms, I conclude the book by encouraging others to take forward an approach to reimagining the CoP based on design thinking, a socio-legal approach which suggests collaborative working across stakeholders for better design. I see this as the next steps for taking this work forward to ensure effective access to justice for the Person.

Overall, this is a timely book, which provides an original account of the CoP grounded in innovate empirical data. The book contributes to the call for the reform of this important court from a procedural justice perspective, to ensure a better experience for those who use it, and to meet the requirements of access to justice.

Reimagining the Court of Protection by Jaime Lindsey

About The Author

Jaime Lindsey

Jaime Lindsey is Senior Lecturer at the School of Law at the University of Essex. Her research interests include healthcare law, mental capacity and adult safeguarding law, access ...

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