The Court of Protection

For lots of people, the first time that they become aware of the Court of Protection is when they face the prospect of a court case in relation to themselves or a loved one. It can be overwhelming, especially because when people think about a court, they often imagine criminal courts where Judges and barristers wear gowns and wigs and the Court is deciding whether or not someone is guilty.  People can also find it difficult to get to grips with what is happening because the language used to talk about the issues in the case can be unfamiliar.

The Court of Protection is a Court which is dedicated to making decisions on financial matters or welfare issues (such as where someone might live or what care they might receive) for people who cannot make decisions at the time they need to be made i.e. because they lack mental capacity to do so.

The person at the centre of proceedings in the Court of Protection is referred to as ‘P’. The first thing the Court of Protection has to decide is whether P has the mental capacity to make the decision at the centre of the case and if they do not, the Court then has to decide what decision is in that person’s best interests and is the least restrictive option for them.

What does it mean to lack capacity?

What do we mean when we say someone lacks mental capacity? “Capacity” means whether someone is able to make their own decision about something. The law says that someone will lack capacity if they are unable to make a decision for themselves in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.

When considering if someone is unable to make a decision for themselves, you have to consider whether the person is unable:

 (a)      to understand the information relevant to the decision,

(b)      to retain that information, (so whether someone can remember it)

(c)       to use or weigh that information as part of the process of making the decision

(d)       to communicate his decision (whether by talking, using sign language or any other means).

Their inability to do one of these four things has to be because of a condition that affects their mind or brain for example, dementia or a learning disability. It is, of course, not the case that everyone with a condition affecting their mind or brain will lack capacity.

What can the Court of Protection do?

The Court of Protection has the power to make orders in relation to a person’s welfare, specifically including:

  • Deciding where P should live;
  • Deciding what contact, if any, P should have with other specific people (such as family members, friends etc);
  • Preventing a specific person from having contact with P;
  • Giving or refusing consent to the carrying out or continuation of treatment by a person providing healthcare for P;
  • Giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.

Therefore, if anyone wants to make a decision on P’s behalf (for example where P should live) or they disagree with the public body about what decision should be made in P’s best interests or obtain clarification about a particular issue, they can apply to the Court of Protection who can:

  • Make a declaration about whether P can make a particular decision herself and whether an act or proposed act to be taken in respect of P is lawful;
  • Make an order to make the necessary decisions on P’s behalf or appoint someone else (called a ‘deputy’) to make those decisions for her.

When considering whether to make a decision, the Court of Protection has to refer to five principles:

  1. A person must be assumed to have capacity to make a decision unless it has been established that they lack capacity (i.e. the starting point is always that someone can make their own decisions until there is evidence demonstrating otherwise).
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him have been taken without success (i.e. can the decision be explained to them in a different way to assist them in making the decision?)
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. Any act or decision made must be in the best interests of the person who lacks capacity i.e. any decision the Court made about P would have to be in her best interests.
  5. Any action taken must be achieved in a way that is least restrictive to P’s rights and freedom of action i.e. any decision the Court made about P would have to be a decision that would have least impact on her but still be in her best interests.

The most important two for the Court to consider are ‘best interests’ and ‘least restrictive’.

When considering a person’s best interests, the Court of Protection has to take into consideration all the relevant circumstances. This includes whether in the future that person may regain capacity to make a decision, what that person’s past and present wishes and feelings are, their beliefs and values that are likely to influence their decision and any other factors that the person would be likely to consider if they had capacity. The Court should also consult with other people such as anyone engaged in caring for that person or who is interested in their welfare.

The Court does not however have to make a decision in accordance with either the person’s wishes and feelings or the position of people who are interested in their welfare if overall it would not be in that person’s best interests.

The Court of Protection is a forward-looking inquisitorial court. This means that the Court’s role is not simply to decide who is right and who is wrong but to engage in the process of considering what evidence is required to help it make a final decision and what options are available for P. P is at the very heart of the proceedings and the emphasis is on everyone working together to reach an outcome that is in P’s best interests. Judges and barristers in the Court of Protection do not wear robes (unless the case is in the High Court) and Judges often meet P (if P would like to meet them) to hear from P directly about what they want.

The Court of Protection team at TV Edwards can represent you or a loved one in any welfare issue in the Court of Protection. Please contact us on 020 3440 8000 or a_courtofprotectionreferrals@tvedwards.com to make an enquiry.

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