Court of Protection model no longer compatible with latest international human rights, argue Cardiff researchers

A team of researchers from Cardiff University think that the Court of Protection’s ‘low participation’ model is ‘no longer compatible with developments in international human rights law’. As a result they feel there is 

“an urgent need to address the model of participation of P in the CoP. This will require revisions to the rules and practice directions, through increased resources for various elements of participation, and by addressing the question of when and how cases should come to the CoP. “

Their thinking is presented in a research report published this month that looks at The Participation of P in Welfare Cases in the Court of Protection. The team of Lucy Series, Phil Fennell & Julie Doughty consider different elements of participation in the CoP in turn, highlighting some particular concerns as below:

• difficulties experienced by P in accessing the CoP to challenge a decision made under the MCA or to review a deprivation of liberty;
• resource constraints on making P a party to the proceedings;
• the serious detriment to the fairness of proceedings done by a decision not to notify P about the case;
• uncertainty about whether and how judges should take evidence from P and form their own view as to P’s mental capacity;
• the limited resources available for representation of P within the proceedings – either via a legal representative or, in some cases, even a lay representative;
• difficulties reconciling the ‘best interests’ model of representation currently adopted by litigation friends with recent human rights authorities on deprivation of legal capacity and deprivation of liberty proceedings;
• a lack of recognition of the centrality of P’s ‘personal presence’ in proceedings in the CoP’s rules and guidance;
• a lack of provision for special measures and reasonable adjustments in the CoP’s rules, as well as no specific allocation of resources for this purpose;
• inadequate training of legal representatives and judges on disability and access to justice matters;
• a lack of accessible information about the CoP for those who are subject to its jurisdiction

The report, which also sets out 20 specific recommendations to enhance the participation of P, can be found on the Cardiff University website here.

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