Should the Court of Protection issue guidance on how and when to involve the incapacitated person?
The House of Lords Select Committee on the Mental Capacity Act 2005 (http://www.parliament.uk/business/committees/committees-a-z/lords-select/mental-capacity-act-2005/) (initially reported on this website on 16 August 2013) is continuing, with its final report due by 28 February 2014. The Committee has continued to hear from a variety of contributors before making its recommendations, including advocates, representatives of mental health charities, lawyers and lay people including Mark Neary, father to Steven Neary.
Court of Protection lawyers have argued that the extent to which the court hears from the incapacitated person (about whom the proceedings are brought) should be given more thought. This most often will be an elderly person with dementia, or an adult with a learning disability or mental illness.
At the moment, there is no clear guidance in the Mental Capacity Act 2005, the Court of Protection Rules, or Practice Directions, or the Code of Practice, as to how and when the court should hear from the incapacitated adult. This has two implications. The first is that there is no consistency between cases as to how the person will be heard, if at all. The second is that the importance of the person being allowed to express his/hers views can be forgotten altogether.
In our view, it is right not only that the person should have the opportunity to contribute and participate in the proceedings (which are after all about them), but it can also be helpful to the court to hear directly from that person, particularly where the case involves the court balancing the person’s own wishes against the need to keep them safe from harm. The court will usually hear from professionals, often social workers or psychiatrists, about the risks they perceive, so why not as a matter of course hear the person’s wishes too (if indeed they want to express them)?
Fortunately, the court does seem to be acknowledging these concerns. In a recent case, Re M (Best Interests: Deprivation of Liberty)  EWHC 3456 (COP), Mr Justice Peter Jackson (a High Court judge) noted that a District Judge had, earlier in the case, visited M, the incapacitated adult, in the care home where she resided, and notes of that meeting were included in the court papers. Mr Justice Peter Jackson commended this approach and commented that it allowed the court to be informed of M’s views, and allowed M to be more connected to the proceedings without having to be placed in the stressful position of having to attend court herself.
We have also had experience of a Court of Protection judge proposing that the final hearing in the case take place in our client’s care home, rather than in the court, just as First Tier Tribunals (Mental Health) take place in the patient’s hospital with the Tribunal panel travelling to them, and not vice versa. We think this could work well but only if the client wants to be present; they should be first asked what they want. In some cases if the person is mentally unwell, it may not be wise to impose a court hearing on them if it would only serve to cause distress and anxiety. They, however, may want to express themselves differently, for example by way of a private meeting with the judge and their solicitor.
Ultimately, the approach to be taken should very much depend on the individual’s preferences. Some will actively want to attend court, some will not. The important thing is that they are given the choice early on in the proceedings as to how they wish to be involved, because the proceedings are after all entirely about them and it is right that all those involved in the proceedings should keep this at the forefront of their minds. We think it would assist for the court to formalise the process by setting out guidance as to how and when the person at the centre of the case is heard from. Until that happens, it will keep being up to solicitors (where the person is represented) to make sure the court has a well-informed, accurate view of their client’s wishes and feelings.