When can decisions affecting people’s fundamental human rights be made by social workers and doctors under the Mental Capacity Act 2005, and when should they be made by the Court of Protection?  When cases get to court, how should the person the case is about be represented? Should they always be able to meet the judge? How can they be supported to attend court hearings or to give evidence?

These are all questions about participation. The landscape of rights to participate in proceedings about legal capacity and deprivation of liberty is rapidly changing.  Prompted by the United Nations Convention on the Rights of Persons with Disabilities, the European Court of Human Rights has recently set out key rights for disabled people to participate, starting in 2008 with the case of Shtukaturov v Russia.  It has set out unqualified rights of access to a court to challenge a deprivation of legal capacity or deprivation of liberty.  It has developed a ‘rule of personal presence’, which says that judges making decisions with serious consequences for people’s lives must have personal contact with the person concerned. It has set out how representatives should put forward arguments and evidence in support of the person’s claims.  And it has said that people have a right to be notified about proceedings concerning their liberty and legal capacity.

The Court of Protection was set up before these important cases. The Court’s rules and procedures were based on a low participation model.  During the consultation on the court’s rules in 2006 nobody asked whether the person the case is about should always meet the judge, or what practical issues might arise if P attended court in person.

Recently the Court has started to adapt in response to these important human rights rulings.  It has developed a new rule – Rule 3A – which says that judges must consider in each case how the person whom the case is about should participate in the proceedings, including whether they should meet the judge and how (if at all) they should be represented.  Increasingly, judges in the Court of Protection are meeting with the person whom the case is about, and in some cases the court has gone to great lengths to help the person to observe and participate directly in a hearing.  However, because the court’s rules and processes were set up on a low participation model, it does not have a system of ‘special measures’ already in place to help disabled people participate. Although some guidance has now been produced, it is not legally enforceable and serious questions remain about the funding of any special measures or reasonable accommodations to help people participate.

Meanwhile, the Law Commission has undertaken a consultation on mental capacity and deprivation of liberty.  They have questioned whether a tribunal might be better placed to help people participate in certain cases.

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In our report we consider in depth what a ‘human rights model of participation’ looks like.  We assess key features of participation in the Court of Protection against this model, focusing on cases about health, welfare and deprivation of liberty.  We then look at the same issues for the Mental Health Tribunals in England and Wales, to see whether this offers a better approach.

We found that despite the best efforts of the judiciary and those working within the Court of Protection system to promote participation, several aspects of its model are not working because the system itself was not set up to facilitate participation on a large scale.  Some of these problems require revisions of the court’s rules and procedures, some require additional resources, and the court may need to adopt some practices of the Tribunals.  We make 20 recommendations for improvements.

You can download a copies of the report here:

Series Fennell Doughty Feb 2017 Participation of P (PDF)

Series Fennell Doughty Feb 2017 Participation of P (Doc)