News and guidance: Facilitating the participation of ‘P’ in Court of Protection proceedings

28 November 2016

Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings.

Mr Justice Charles has released this practical guidance with helpful suggestions as to how practitioners might consider enhancing the participation of someone who might lack mental capacity, in proceedings in the Court of Protection. The introduction makes it clear this guidance is primarily directed towards health and welfare cases in the court, and contains suggestions not rules: it is not a required checklist of all matters for consideration in all cases. Instead it is a list of suggestions for consideration by those representing the person (always in Court of Protection writings called ‘P’ for ‘person who may lack mental capacity’, changed here to ‘the person’ or ‘the individual’) and also other parties, including statutory agencies, as to how their participation in proceedings might be enhanced.

Despite being written for court staff or lawyers, it is suggested in the guidance that it may be useful for statutory agencies. It’s an example of how to work within the framework of the Mental Capacity Act (MCA) 2005, by going to some considerable trouble to make the setting comfortable and non-threatening for the person. Specific court-related guidance has been taken out, and adapted this slightly for more general situations, in the list that follows, but it covers:

  • Has everything possible been done to improve the person’s communication skills, and, if not, how can their abilities be maximised?
  • What can we do to make the setting more comfortable for the person, and should they have someone they trust with them to allay their fears?
  • How can we explain clearly to the person what is going on, without using jargon or overwhelming them with too much detail?
  • If the person will need disabled toilet access, or their medication, or a quiet ‘escape room’, all these practical matters need sorting out in advance.
  • If we will need more time so that the person isn’t rushed, we need to factor that in too.

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