Book review: Reimagining the Court of Protection: Access to Justice in Mental Capacity Law

Introduction

Created under the Mental Capacity Act 2005, ¹ the Court of Protection is a specialist court with responsibility for determining whether someone lacks capacity to make decisions for themselves. It also has powers to make decisions on that person’s behalf if they do lack capacity to make decisions for themselves. ² It might be thought that such a Court, that has only existed since the mid 2000s, wouldn’t need ‘reimagining’ so soon. In her new book, ³ Jaime Lindsey explains why that assumption is wrong.

Lindsey is correct that ‘there had been relatively little academic focus on [the Court]’s workings’. ⁴ The book adds to the growing body of socio-legal scholarship analysing how mental capacity law works in practice more generally. Lindsey’s approach to looking at the structures and processes of the Court provides a fresh perspective and the empirical data that she draws on grounds her analysis in the real operation of the Court. The book’s clear and conversational tone is accessible and will enable it to reach beyond academic audiences.

The book identifies various stages of the Court process which could be reformed to make it a more inclusive and responsive institution that truly serves the best interests of those who become the subject of proceedings (who Lindsey refers to as ‘the person’). The chapter headings give an idea of the scope of the reforms that Lindsey proposes, namely, changes to how the person participates in the process, mediation in the Court, the use of expert evidence and the courtroom space itself.

Substance of the book

Procedural account of justice

Lindsey’s book adopts a procedural account of justice (as opposed to an approach which focuses on substantive outcomes). The first two chapters of the book therefore establish the context and framework within which the Court of Protection operates and explains why a procedural account is useful to understanding its operation. Lindsey points out that ‘COP proceedings are in some ways quite different from the typical context in which procedural justice is invoked’ ⁵ and that this is, at least partially, because of the apparently inquisitorial nature of the Court.

While it is correct that litigation in the Court of Protection is different to other legal venues, the Court itself deals with two different jurisdictions, health and welfare and property and affairs. Lindsey observed cases involving a wide range of issues, but the book focuses mainly on the procedure within health and welfare cases. The two jurisdictions of the Court of Protection are not only different from other legal jurisdictions but also different from each other. The procedural difficulties which arise because of the wide spectrum of decisions being made in the Court of Protection is outside of the scope of the book; however, this would be an interesting further project. For example, a decision about where it would be best for someone to live is likely to benefit from an inquisitorial and collaborative approach, whereas, an application to revoke an attorney’s appointment on the basis of wrongdoing may need to be more adversarial.

Participation of the person

Chapter three interrogates how the current system facilitates the person’s participation in the Court process. That this topic has received increasing academic attention ⁶ where other aspects of the Court process have not, evidences the interest in and importance of facilitating the person’s involvement in cases that relate to their lives. One of the most compelling aspects of Lindsey’s book is her emphasis on the importance of listening to the voices of those directly affected by the decisions of the Court of Protection. By centring the experiences and perspectives of the subject matter in proceedings, Lindsey underscores the need for a more participatory and person-centred approach to decision-making, where the wishes and preferences of the individual are given paramount importance.

Lindsey acknowledges that she did not base her conclusions on direct interviews with people who have been the subject of court proceedings. This is understandable given the ethical and legal implications of interviewing people who lack capacity to consent. The data she has gathered are from interviews with social workers and other professionals working in the Court. These professionals offer an interesting perspective on the practical working of the Court and gives the book an authoritative grounding from which to make suggestions for reform. Clearly, a lot can be ascertained from professionals, and Lindsey also observed court hearings which allowed her to explore how the subject of proceedings experienced the system (albeit not directly from the person themselves).

Mediation

Chapter four explores the relatively new phenomenon of alternative dispute resolution in Court of Protection cases. Lindsey again draws on interviews with practitioners to suggest that mediation in the Court of Protection can offer several benefits, including flexibility, confidentiality, and a less adversarial approach compared to traditional court proceedings. Furthering the central thesis of the book, Lindsey suggests that effective uses of mediation can offer better access to justice for those involved in the process.

Lindsey correctly differentiates the Court of Protection from other litigation in which mediation has been used to resolve disputes. Litigation in the Court of Protection must have the person’s best interests as a central aim. ⁷ While best interests is also a familiar concept in family law proceedings, litigation in the Court of Protection does not involve children or capacituous adults. Disputes in the Court of Protection are different and, although mediation can be effective in resolving many disputes, it may not be suitable for all cases, particularly those involving significant legal complexities. Lindsey recognises this and acknowledges that moving away from legal issues ‘can be difficult to achieve’. ⁸ Lindsey’s interviews with professionals working in the Court is particularly illuminating as to how mediation could be used in practice. The chapter highlights potential issues with this however, citing a reluctance to accept resolution without judicial oversight and systemic issues in the way that professionals approach Court proceedings. In such instances, the court may still need to intervene to make decisions in the individual’s best interests and legal argument may be needed.

Mediation remains a valuable tool in promoting consensus and ensuring that the voices of all parties are heard in the resolution of Court of Protection matters. Lindsey’s focus is understandably and correctly on ensuring that the person who the case is about is able to participate. Other projects, such as the Open Justice Court of Protection Project, alternatively focus on ‘public access to the court’ ⁹ partly to scrutinise the operation of the Court but also to provide guidance to the public about accessing cases in the Court. The book has not explored the implications that a wider use of mediation in Court of Protection litigation may have for public access to the Court, this could be an important topic for future research.

Expert evidence

Chapter five explores how evidence is used in the Court of Protection. Lindsey laments the hierarchy of evidence between ‘expert evidence’, being evidence provided by a professional and what she describes as ‘experiential’ knowledge, ¹⁰ often provided by the person that the case is about. The chapter describes how evidence is used in the Court of Protection and includes an interesting table which charts the outcome of various cases which Lindsey observed and how evidence was used in those cases.

This chapter furthers Lindsey’s argument from earlier chapters that the person who the proceedings are about is not sufficiently involved in proceedings. She notes that the person’s views were gathered orally by the judge in some of the cases that she observed but that these views were not given evidential weight. The Mental Capacity Act 2005 requires the judge to take into account the person’s ‘past and present wishes and feelings’ and ‘the beliefs and values’ of the person. ¹¹ Acquiring and considering the person’s wishes and feelings is presumably the exercise that Lindsey observed in the cases that she references. However, the weight attributable to those wishes will depend on whether the particular wishes and feelings are rational, sensible, responsible wishes and feelings capable of pragmatic implementation. ¹² The person’s wishes and feelings must form part of the best interests analysis in the Court but Lindsey suggests that statements from the person should also be given the same evidential weight as the evidence from other individuals (notably professionals working with the person). However, this suggestion requires further practical consideration as it is unclear how this would be balanced against other important fair trial principles (e.g., it would appear to be inappropriate for other parties be able to challenge the person by cross-examination or to adduce alternative evidence to rebut their views).

The courtroom space

Chapter six weaves together theoretical analysis with real-life case studies and practical examples of how the Courtroom is actually set up. The chapter investigates the Courtroom ‘as a material space’ ¹³ as well as virtual courts. It considers whether the current set up in Court of Protection court rooms achieves effective transparency and accessibility with the observation that ‘it is reasonable to expect courts, which are fundamentally public spaces, to be designed in ways that facilitate attendance and participation by all in society’. ¹⁴ This chapter provides a practical exploration of one aspect of the Court’s process (i.e. the actual room in which the Court sits) and it uses the material reality of the Courtroom to explore how the Court of Protection approaches the issues before it (for example, suggesting that a more formal Courtroom set up aligns with a more adversarial approach to litigation ¹⁵ ). Ultimately, the chapter concludes that court space and design plays a crucial role in ensuring access to justice and should therefore be more purposefully thought through for the people who the cases are about.

Conclusion

In conclusion, ‘Reimagining the Court of Protection’ offers a compelling vision for the future of decision-making for individuals within the Court of Protection. Through its rigorous analysis, insightful recommendations, and unwavering commitment to principles of empowerment and dignity, Lindsey’s book challenges the Court of Protection to rethink its assumptions about mental capacity and the people who find themselves in the Court. However, Lindsey does not shy away from acknowledging the inherent tensions and challenges involved in implementing such reforms. From institutional resistance to cultural biases, Lindsey confronts the obstacles that stand in the way of creating a more progressive and rights-based approach to decision-making for individuals. Her interviews with professionals evidence and elucidate her conclusions about these barriers and allow the book to focus on the actual workings of the Court and not just its output. Nevertheless, Lindsey remains optimistic about the possibilities for change, highlighting the growing momentum behind rights-based advocacy and the increasing recognition of the need for a more inclusive and respectful approach to disability in mental capacity law.

The book is a must read for those commenting on the processes as well as output of the Court of Protection. I also consider that the book would be useful for legal and social work practitioners as an accessible handbook on how to approach proceedings in the Court.