An individual who is alleged to lack the mental capacity to make decisions in respect of their health, welfare and/or the deprivation of their liberty under the Mental Capacity Act 2005 (“MCA”), is referred to as a ‘Protected Party’, though more commonly in Court of Protection proceedings, ‘P’.
Supporting P’s participation in Court of Protection proceedings is a fundamental aspect of enabling the court to make a best interest decision in respect of P’s health and welfare, whether it be in relation to, where P resides and receives care; who they engage in relations with, for example, sexual relations, and the extent to which; who they have contact with or, any other matter affecting their health and welfare. Within the guidance handed down by Mr Justice Charles, the term ‘participation’ is given a broad meaning, though it is predominantly concerned with submitting evidence or information to the court, as part of the judicial process, and crucially, with supporting the involvement and understanding of the individual, in particular, P, in the process and its outcome.
Further within his guidance, Mr Justice Charles suggests that the ‘key’ to P’s effective participation will begin with what is necessary for their effective participation within the court process, which concerns their best interests in respect of the conduct of the litigation. In order for P to be placed at the centre of the proceedings, Mr Justice Charles emphasises the importance of ascertaining P’s wishes and feelings in relation to the issues to be determined by the court. Ascertaining the wishes and feelings of P can, however, be an extremely challenging aspect of these proceedings. In some cases, P’s impairments may be sufficiently severe that they are unable to participate in any meaningful fashion in the court process, for example, their psychological impairment might be so that they cannot comprehend the information which is presented to them, or alternatively, P might have a speech impairment or other diagnosis, such as ‘nonspeaking Autism’, which renders them unable to effectively communicate their wishes and feelings, if at all.
Whilst the extent to which P’s true wishes and feelings can be attained will vary on a case-by-case basis, often depending on the nature and degree of P’s impairment(s), as well as other factors such as their communicative abilities, Section 4(4) of the MCA emphasises the importance of sufficient steps being taken to support and encourage P’s participation. Specifically, Section 4(4) states:
“He must, so far as reasonably practicable, permit and encourage the person [P] to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.” In essence, the MCA requires that sufficient efforts are made to support P’s participation in the court process. Whilst there is no exhaustive list, this could include consideration of P’s communicative abilities and the ways in which they may be enhanced, for example, by referring them to ‘Speech and Language Therapy’ or implementing communication aids. Such aids may be used when obtaining P’s wishes and feelings should such an exercise be deemed necessary in a particular set of proceedings.