The missing voice in the Court of Protection: 3-Dimensions of Participation in Health and Welfare Cases

Conference: Society of Legal Scholars

Dates: 1-4 September 2021

Abstract:

The Mental Capacity Act 2005 (“MCA”) has the principled aim of centring the wishes and values of those who lack capacity (“P”) in best interests decisions about their health and welfare. To ensure that the authentic values of P are accurately identified, and thus, balanced within best interests decisions, in the Court of Protection (“CoP”), both lawyers and judges must be able to effectively communicate with P. To ensure that the dignity and human rights of P are respected both sets of actors must also maximise the opportunity for P to participate in the deliberation process. Despite the seminal importance of P’s effective participation during court proceedings, the skills necessary to support P’s participation, the values at play, and the purpose of participation are seldom critically evaluated. The Judging Values Project has undertaken interviews with 40 practitioners and 12 retired judges to understand how these actors conceptualise the skills and values necessary to support, promote and secure effective participation. Whilst the investigation has identified excellent practices, which will form the basis of a future training video, the data has also exposed gaps between how some practitioners and judges conceptualise the purpose of participation, and therefore the skills needed to ensure that communication with P is effective. The authors argue that participation in the CoP is a three dimensional process, involving the negotiation of values by: (1) the lawyers, (2) the Judge, and (3) the incapacitated person. Yet, in antithesis to the ethical impetus of the MCA, there has been little empirical focus on P - their aims, feelings and wishes about their own participation. The presentation draws on findings of a consultation process with experts-with-experience to suggest some ethically-appropriate methodologies for future research. Without adding a third leg to the empirical stool of participation balanced policy cannot be created.

Source: Manual