Public, Specialists

Introducing… our study on Court of Protection files

Lucy Series

5 March 2014

Welcome to our new website about a research project at Cardiff Law School on Welfare Cases in the Court of Protection.  The Court of Protection is a new court which was created under the Mental Capacity Act 2005 (MCA) to deal with disputes or concerns about issues relating to a person’s mental capacity and best interests.  The Court of Protection hears a wide range of cases, and the majority of its work involves property and affairs issues.  However, it also deals with cases about health and welfare issues – and these are  the subject of our project.

What are health and welfare cases in the Court of Protection?

Health and welfare cases in the Court of Protection cover lots of different issues – such as where a person should live, whether they should have a particular medical treatment, or with whom they should have contact.  Often these cases raise acute emotional and personal issues for the people concerned – which is one reason why the Court of Protection usually sits in private.  This means that the public and media are not allowed to attend court hearings unless the judge has given them permission to, and people are not allowed to tell others about what happened in court without permission from the judge.  This is to help protect the privacy of the people using the court to resolve personal issues.  However, increasingly the Court of Protection will publish anonymised judgments so that the public knows more about its work. New ‘transparency guidance’ has been issued by the Court’s president – Sir James Munby, and this will lead to the publication of more judgments where the parties’ anonymity is protected.

What questions does this research try to answer?

Our research concerns the process of using the Court of Protection to resolve health and welfare issues.  We are interested in this for a range of reasons, in our project we want to answer such questions as :

  • How accessible is the Court of Protection for those who  need to use it, and what do people think could be done to improve accessibility?
  • What do different people think about how the Court of Protection should manage the balance between ‘transparency’ and the rights to privacy of those using the Court?
  • How does the Court manage the balance between ensuring that matters are dealt with as speedily as possible (efficiency) whilst also ensuring that matters are considered thoroughly where necessary?

We think that these are very complicated issues, and so we want to look at this from a range of perspectives, including the views of those who work in the court and the views of those using the court.

How will you find the answers to these questions?

A first step in our project involves gathering good quality statistical information about who is using the court, and why.  This is important because often the cases given a high profile in the media and in the research literature may  actually be quite unusual, and may not necessarily represent the typical work of the Court .  So we want to collect statistical data answering such questions as:

  • Who usually applies to the Court of Protection to use its welfare jurisdiction?  Is it family members, public bodies such as local authorities or the NHS, or people who are alleged to lack capacity?  Does this differ for different types of cases?
  • What kinds of issues does the Court typically have to consider?  What are the most common issues, and what issues are more unusual?
  • Are families who use the Court of Protection’s welfare jurisdiction usually assisted by a solicitor or a barrister?  Do they often have legal aid?
  • How long do Court of Protection welfare cases typically take, and what are the typical stages of the process?
  • How often do people who are said to lack capacity participate in Court of Protection proceedings?
  • What kinds of evidence does the Court usually call for in arriving at a decision?

We are planning to do this by looking at a large sample of the Court of Protection’s files for health and welfare cases, and putting data into a database.  We will use this database to generate statistics and charts to help describe the Court’s work and processes to other people.  We don’t want to use what are  called ‘qualitative’ research methods on the Court’s files, where the researcher  tells individual people’s stories or reports things that people have said, because it is much harder to protect people’s identities that way and different rules apply to researchers doing this kind of research.  We won’t be collecting any names or addresses, and we will ensure that we do  not publish any information which means people could be identified from other information.

How have you worked with the Court of Protection to set up this study?

Setting up a project like this is difficult, because of the laws  protecting the  privacy of people using the Court of Protection.  However, we have worked closely with the Court of Protection, whose staff and judges have worked hard to help us arrive at a system that obeys the law in this area and will protect the privacy of the Court’s users.  Everyone at the Court of Protection has been  most helpful and open in enabling us to set up this project, and we hope that our findings will be useful to the Court as well as other people with an interest in its work.  We are working with other experts in this field, who are on our advisory group, to help us ensure we make the best use of this opportunity as possible.  If you have any thoughts on research questions that we should consider in this aspect of our work, please feel free to make suggestions!

When will you tell us what you found?

This study of the Court of Protection’s files will take some time to complete.  We hope to look at a first sample in summer 2014, and if our funding is renewed then we plan to look at another – larger – sample in 2015 or 2016.  When we have conducted our analyses, we will post them here so that you can read about what we found.