The CoP was established, in 2007, to make decisions under the Mental Capacity Act (MCA) 2005. Its jurisdiction encompasses property and affairs, and health, welfare and deprivation of liberty. Our report focused on health, welfare and deprivation of liberty cases.
The subject of CoP proceedings is known as ‘', ie, the person who is alleged to lack mental capacity to make the decision in question. The CoP can make determinations and orders in relation to P’s mental capacity, and best interests, in connection with specific decisions.
In 2007, the MCA was amended to include a framework for detention in care homes and hospitals known as the deprivation of liberty safeguards (DoLS). The CoP can both authorise detention and hear appeals against detention under the MCA. The Law Commission has proposed an alternative framework for detention because of serious problems with the DoLS.
Since the CoP was established, the international and domestic human rights landscape has shifted significantly. The UN Convention on the Rights of Persons with Disabilities (‘ the disability rights convention’) has placed a greater emphasis on accessibility, access to justice, and the ‘will and preferences’ of the person (article 12(4)).
Meanwhile, the European Court of Human Rights (ECtHR) has heard a number of cases, starting with Shtukaturov v Russia App No 44009/05; [2008] ECHR 223, which have established strong rights to participate in legal capacity and deprivation of liberty proceedings. The CoP introduced a new rule 3A into the Court of Protection (Amendment) Rules 2015 SI No 548, in 2015, to enhance P’s participation in response to these cases.
Domestically, a growing number of health and welfare cases that engage rights under article 8 of the European Convention on Human Rights ('the human rights convention') to home, family and private life (including bodily integrity) now come to the CoP.
… despite the best intentions of the judiciary, and others working in the CoP system, the practices and procedures of the court are simply not set up to realise P’s rights to participate
Meanwhile, the Supreme Court’s ruling in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19 defined ‘deprivation of liberty’ in such a way that over 100,000 people in care settings are now regarded as deprived of their liberty. Consequently, the CoP anticipates tens of thousands of applications for authorisation of deprivation of liberty. It has established a streamlined procedure for dealing with noncontentious deprivation of liberty authorisation applications, which have been subject to ongoing litigation to address how to protect P’s rights under article 5 of the human rights convention when there are limited resources available for their representation. Recent judgments emphasising rights of appeal under the DoLS will also increase the CoP’s workload.
In the 10 years since the CoP was established, the ECtHR has been developing rights to participate that were not recognised when the Court of Protection Rules 2007 SI No 1744 were drafted. These new rights to participate are likely to have significant practical and resource implications. At the same time, domestic developments mean that the court hears growing numbers of health, welfare and deprivation of liberty cases. The CoP has to tread a tightrope to find the appropriate ‘procedural balance’ between the available resources and P’s rights to participate.
In our report, we analysed the ECtHR authorities that established key rights to participate, and extracted three core principles:
The dignity principle P’s participation in the proceedings must reflect the seriousness of the matter for their life, and respect their dignity.
The evidential principle P’s direct participation in the proceedings may be necessary to establish whether or not they have mental capacity and the proportionality of any measures proposed in relation to them. Judges must form their own opinions and not simply defer to expert evidence.
The adversarial principle Where P is the subject of the proceedings, participation may be necessary to help them present their case and to refute evidence and counter arguments recommending measures that they oppose.
The ECtHR has also established, in these cases, what it calls the ‘rule of personal presence’.3 ‘Judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons’ (X and Y v Croatia App No 5193/09; [2011] ECHR 1835, para 84). This principle has been reiterated many times. Judges must meet P (where P wishes to do so) in order to form their own view of P’s capacity and the measures proposed in relation to them, so that P can put their case to the judge, and in recognition of the serious consequences of proceedings for P’s life. The UK Supreme Court has also found a similar principle of ‘personal presence’ under the common law in relation to prisoners’ parole hearings (Osborn v Parole Board; Booth v Parole Board; In the matter of an application of James Clyde Reilly for Judicial Review (Northern Ireland) [2013] UKSC 61).
We assessed the CoP’s practices against these rights to participate for the following matters: access to a court; party status; notification; evidence and information before the court; representation in proceedings; attending court and personal contact with judges; special measures and reasonable adjustments; training of judges and representatives; and accessibility measures in the CoP.4 This article provides a summary of overarching themes.
We found that although the ECtHR has established key rights of access to a court for P to challenge decisions made under the MCA and the DoLS, in practice it was diÿcult for P to exercise these rights. We argue that because this raises fundamental questions about how much authority professionals can exercise under the MCA without court oversight, there should be a public consultation to address the question of which matters should go to court and whether alternative procedural safeguards would be appropriate in some cases.
We found that the CoP was simply not set up to give effect to the ‘rule of personal presence'. Although CoP judges are meeting P in a minority of cases, there is uncertainty among CoP practitioners about whether judges should be using this as evidence. There are also practical considerations if P attends court, and considerations of fairness to the other parties if the judge goes to visit P in person.
One option is for the court to develop ‘special measures’ such as the Family Court is considering and the criminal courts have already. Another is for the court to adopt the practice of the mental health tribunals and to sit in (or near) the place where P lives.
In the CoP, P’s representatives generally argue for the course of action they regard as being in P’s best interests rather than what P actually wants. This means that, for example, P might want to apply to court to challenge a best interests’ decision or a deprivation of liberty, yet their own representatives could either withdraw their application or argue for the very outcome that P opposes. Under recent ECtHR authorities, P’s representatives must not be ‘passive’ and must put forward matters in support of P’s claim. We argue that this means that representatives should be putting forward the best evidence and arguments for what P actually wants rather than their view of P’s best interests.
We argue in our report that despite the best intentions of the judiciary, and others working in the CoP system, the practices and procedures of the court are simply not set up to realise P’s rights to participate. Where the CoP has gone to considerable lengths to enable P to participate, it has become apparent that this raises many practical diÿculties which can be resource intensive to address. This problem is exacerbated by the increasing volume of health, welfare and deprivation of liberty cases heard by the CoP. The court was set up to hear 200 health and welfare cases a year, but this now reaches into the thousands.
We argue that mental health tribunals in England and Wales realise patients’ rights to participate in much more cost-effective ways. In particular, the application process is simple, in the main the patient’s wishes and feelings are represented not their ‘best interests’, and because the tribunal actually sits in the place where the patient is detained (or near where they live, if they are under community supervision), the patient can participate directly without the court having to adopt complex special measures. We argue that the CoP Rules should be adapted to reflect elements of the tribunal’s approach.
The government will open a consultation when it takes forward the Law Commission’s proposals on the MCA and the DoLS; this consultation offers an ideal opportunity to address these questions of participation.