The participation of P in welfare cases in the Court of Protection

Authors:
SERIES Lucy, FENNELL Phil, DOUGHTY Julie
Publisher:
Cardiff University
Publication year:
2017
Pagination:
190
Place of publication:
Cardiff

This report considers how effectively the person who is alleged to lack mental capacity can participate in Court of Protection (CoP) proceedings which are about their health, welfare or deprivation of liberty. It considers in depth what a ‘human rights model of participation’ looks like and identifies three essential principles of a human rights-based approach to participation: the dignity principle, the evidential principle, and the adversarial principle. Key features to promote participation in the Court of Protection are then assessed against this model. These cover: access to a court; evidence and information before the Court; representation in proceedings; attending court; special measures and reasonable adjustments, such as funding for intermediaries to assist with putting questions during a hearing; and training of judges and representatives. It then looks at the same issues for the Mental Health Tribunals in England and Wales, to see whether this offers a better approach. It finds that several aspects of the CoP model for participation are not working because the system was established on a model of ‘low participation’ that is no longer compatible with developments in international human rights law under the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities. To increase levels of participation, it concludes that there needs to be revisions to the rules and practice directions, increased resources for various elements of participation, and by looking at when and how cases should come to the CoP. The report makes 20 recommendations for improvements. (Edited publisher abstract)

Subject terms:
Court of Protection, human rights, mental capacity, user participation, decision making, Deprivation of Liberty Safeguards, advocacy, rights;
Content type:
research
Location(s):
England, Wales
Link:
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