The accessibility of the Court of Protection is one of three strands of research in our project about welfare cases (the others being efficiency and transparency).  A key element of ‘accessibility’ is how effectively the relevant person can participate in proceedings that are about them.  As part of this strand of our research, Lucy Series has prepared a briefing document setting out important recent developments in human rights law which suggest that it is vitally important that the relevant person is supported to participate in proceedings which will have serious consequences for their personal lives.  You can download this Briefing on Personal Participation in the CoP v1-2 (the briefing was updated on 18 September to reference a new ruling of the European Court of Human Rights).

The case law of the Court of Protection reveals a diverse array of ways in which the relevant person has participated in cases.  Sometimes they have gone to court and met the judge in person.  The cases of CC v KK (2012) and Re SB  (A Patient; Capacity To Consent To Termination) (2013) are both powerful examples of what a difference it can make to the course of a case if the judge talks to the person in question.  In both these cases, the judges came to the conclusion that the relevant person had the mental capacity to make important decisions for themselves, even though professionals and others thought that they did not, after talking to them in person.

In other cases, judges have received letters from the person setting out their views.  For example, in Re P (capacity to tithe inheritance), a man with strong religious beliefs who wanted to tithe some of his inheritance to the church wrote to the judge to explain why.  In a landmark case called Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290, which occurred before the Mental Capacity Act 2005 was passed by Parliament, the High Court itself “sat” in the hospital where a man called Mr C was detained under the Mental Health Act.  This enabled Mr C to give evidence about why he refused treatment to have his leg amputated, which doctors thought was necessary to save his life, and he was the first person who was found to have mental capacity using the ‘functional test’ that is now in the Mental Capacity Act 2005.  In some cases, judges have even made efforts to have personal contact with the relevant person where they are unlikely to be able to communicate directly with them.  For example, in W v M (2010) Mr Justice Baker visited a woman called ‘M’, who was in a minimally conscious state and was the subject of an application by her family for the withdrawal of artificial nutrition and hydration.  In his judgment, he stated that it was obvious to him on his visit to M, that her care was of the highest standard.

It is clear from these cases that direct contact, communication and correspondence between the judge and the relevant person can have a profound impact on judicial decision making.  In our Briefing Paper we review recent developments in human rights law that suggest that it is a central human rights value that ‘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, 2011).  The briefing paper traces the emergence of a ‘rule of personal presence’ in the case law of the European Court of Human Rights, and discusses how similar principles can also be discerned under the common law of England and Wales and are supported by the United Nations Convention on the Rights of Persons with Disabilities.  In our future work, we will talk to people with experience of welfare litigation in the Court of Protection about their views and experiences of how the relevant person is supported to participate in litigation, and what supports might be necessary to enable him or her to do so.