Insight: Mental capacity law in practice, in the Court of Protection

The challenge

The Court of Protection’s role is to determine if a person lacks the mental capacity to make a particular decision and, if relevant, to make that decision on their behalf, in their best interests.

The decisions made in the Court of Protection (COP) can be life-changing. For example, their findings can include that a person lacks the mental capacity to: marry or have a sexual relationship; decide who they can have contact with; or, decide whether they can have particular medical treatment. It’s important, then, that the voices of those likely to be affected by these decisions are heard.

Participation has been shown to be important for justice: whether the person attends court, or provides evidence, can affect the outcome of case. But participation can also be important for that individual in other ways – the opportunity to narrate their own lived experience can be empowering; it can also make it easier for them to engage with the court’s decision, even if it goes against them.

What we did

Dr Jaime Lindsey began looking at evidence of participation in cases before the COP for her PhD, completed at the University of Birmingham. This research provided an important insight into mental capacity law in practice. The COP has historically been a private court – the public have only recently been granted access and, during Covid-19, restrictions returned.

Her research, which was approved by the Ministry of Justice, involved observing proceedings relating to eight cases over eleven hearings and reviewing 20 COP case files.

Her paper on participation in COP proceedings, published after she joined Essex Law School, was the first qualitative study with direct access to COP hearings and case files. Further findings have also been published, including on the balance between psychiatric and social work evidence and the use of mental capacity law as a tool to deal with abuse.

Following on from this research, Dr Lindsey held a workshop at Essex with practitioners, policy-makers, academics, people with lived experience and the judiciary exploring ways to improve participation in mental capacity law. She has also advised a working group of practitioners on mediation in the COP, which, in 2019, set up a pilot COP mediation scheme. Dr Lindsey will be carrying out the academic evaluation of that pilot scheme, with the results published in 2021.

What we found

Dr Lindsey’s research found that, in the COP, it’s rare for the subject to meaningfully participate in the proceedings, for example by giving evidence or attending court. Underpinning this situation, she found “[a] cultural stereotype that mentally disabled adults are especially inherently vulnerable” which permeated COP proceedings. Dr Lindsey argued that the result – denying participation - is “a form of testimonial injustice, that is, a failure to value a person in their capacity as a giver of knowledge.” This stereotyping was reinforced by the language used in proceedings in the COP.

While “special measures” – allowing the subject to be present, for example, via a video link – are often presented as a way forward, Dr Lindsey expressed concern that this could reinforce the assumption that there is something especially vulnerable about subjects of COP proceedings, further undermining their credibility. Dr Lindsey concluded by proposing that a recent rule change be amended to assume that the person would provide evidence unless it was established that she was not competent. Similarly, Dr Lindsey recommended that the subject of proceedings’ participation was a requirement under the mediation pilot scheme, and this will form an important part of that evaluation.