By Rebecca Carter
A group of leading lawyers has expressed concern that the current system for representation of certain protected parties (P) in Court of Protection proceedings is incompatible with the ECHR.
Their response, which identifies a range of issues requiring reform, can be found in volume one of the evidence submitted to the Committee at pages 350 to 360 and is well worth reading.
The relevant submission is number 28, which is reproduced below:
“There is marked variation in the willingness of judges to meet P and allow P to give evidence, or put across his/her views in whatever way is suitable. Guidance for the courts on hearing from P should be provided, for example by way of a further Practice Direction. We have considerable doubts that the current system which does not presume that judges should have “personal contact” before making decisions about their capacity or best interests is compatible with the ECHR in light of the decisions of the European Court of Human Rights in Shtukaturov v Russia (2012) 54 E.H.R.R. 27 and ECtHr in X and Y v Croatia Application No. 5193/90, decision of 3.11.11, the Court in the latter case holding that “judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons” (para 84).”
A contributing factor to this “marked variation” is, perhaps, that there is no specific guidance for the Court of Protection on vulnerable witnesses and whether and how to cross-examine P.
We spoke to Victoria Butler-Cole of 39 Essex Street who compiled the response:
“I put together a group of lawyers who do a significant amount of work in the Court of Protection to prepare joint evidence for the House of Lords Select Committee, as I felt that we might have useful practical information and experience, which would assist the Committee. We had a meeting at which we discussed the questions posed by the Committee and shared our views and experiences, which I then drew together.
Perhaps predictably, we tended to focus on the areas where we felt changes or improvements were required, rather than the areas where we felt things were going well, but that is not to say that the group’s general view of the Court of Protection and implementation of the MCA was particularly negative.
One of the areas we discussed was the “voice” of P in proceedings. Our experience was that different judges had taken different approaches to whether P should be able to give evidence, or whether there should be personal contact between P and the judge. We had particular concerns that there was a need for personal contact with P in certain types of cases, which include those in which P’s capacity is borderline, or the assessment of P’s capacity is particularly difficult. The sorts of cases we had in mind were cases involving people with mild learning disabilities, or cases where P is said to lack capacity because they are apparently not weighing information properly, as evidenced by a reckless or risky choice they have made.
In our experience, the assessment of capacity varies significantly between assessors. While it may be inevitable that different people hold different views on best interests, it is more worrying that whether someone is judged to lack capacity may be strongly influenced by who carries out the assessment. We had found that many practitioners are understandably unfamiliar with the court’s approach to capacity, since the Code of Practice for the MCA has not been updated to include the recently decided cases.
Our proposals included providing this sort of updating guidance to practitioners and encouraging personal contact with P in cases where incapacity is not obvious and P is expressing a consistent view about what should happen, as well as much greater provision of independent mental capacity advocates (IMCAs).
We hope that the Select Committee will find our evidence valuable and that it might influence the recommendations they make.”
We asked family law barrister Malcolm Chisholm of 1 Garden Court for his view on the representation of protected parties in light of these recommendations made to the Committee:
“Judges making decisions under the MCA are becoming much more willing than, say, two or three years ago to meet P, either informally in the judge’s room or by receiving their evidence direct from the witness box.
Is this a good thing? Undoubtedly. The behemoth of Court of Protection proceedings is, after all, designed specifically to protect and serve P’s best interests.
Armies of lawyers can arrive at well-reasoned conclusions about what is or isn’t in P’s best interests, but the temptation for the well intentioned judge or lawyer to make a value judgment (which may have lifelong consequences for P) is put to the test when P tells the judge, as best he or she can, how much they hate their care home or specialist resource, and how much they crave a return home to the care of their chaotic family.
As senior judges have consistently observed, what is the price happiness? Be wary of wrapping P in cotton wool if, by doing so, you keep them safe, but make them sad.
Of course, hearing from P will not necessarily tip the balance in favour of a return home. It all depends. But the vividness of that sort of witness box declaration enhances the scrutiny of the care plan like nothing else. After all, what part of the case will the judge remember in a month’s time, or as he or she moves on to the next Court of Protection case?
Any reforms which move towards an obligation to hear direct from P – unless obviously inappropriate – must be embraced.”
A report is due from the Select Committee by 28 February 2014. It will come at a time when the treatment of protected parties is still fresh in the mind of the press following the infamous “forced” C-section reports. No doubt any recommendations for reform will be pounced upon by the media. Any “exuberant” reporting aside, strong views have been expressed by the legal profession that reform of the MCA is needed and we await the Committee’s findings with great interest.