Reimagining the Court of Protection

Abstract

As one of the first researchers authorised to observe hearings and access court files at the Court of Protection, Jaime Lindsey offers an original account and analysis of the workings of this court. Using data collected with the approval from the senior judiciary of the Court of Protection and the Ministry of Justice, this innovative book combines empirical data with theoretical and normative analysis. It takes a socio-legal approach to understanding how the Mental Capacity Act operates in practice to achieve access to justice and situates current debates within an international context, showing how other jurisdictions have been guided by the United Nations Convention on the Rights of Persons with Disabilities. Furthering scholarship across several fields including access to justice, healthcare law and procedural justice theory, this is a timely and pioneering book that argues for a reimagining of the Court of Protection.

Navigating conflict: The role of mediation in healthcare disputes

“…This theoretical safeguard is not always borne out in practice, as indicated by numerous criticisms of the lack of a participatory approach in the CoP and mental capacity law more generally. [14][15][16][17] Adolescents aged 16-17 are at the intersection of legal frameworks affecting adults and children, being governed by both the MCA and the Family Law Reform Act 1969 (FLRA). Section 8(1) FLRA makes clear that 'the consent of a minor who has attained the age of 16 years … shall be as effective as it would be if he were of full age'.…”

“…For example, mediation does fulfil the requirement of flexibility, voluntariness and mediator independence. 14,30 There is, however, less evidence to support the empowering potential of mediation for the parties involved, with Lindsey 14 arguing that mediation in mental capacity disputes 'privilege[s] legal notions of justice' as legalism dominates, meaning that the mediations are heavily shaped by lawyers, and the lay participants are marginalised in the process.…”

“…Looking at the law on adults first, the MCA is silent on mediation, and while case law in the CoP does sometimes refer to mediation, it is generally rarely discussed. 14 Chapter 15 of the Code of Practice to the MCA does provide some general information about the use of mediation, with some specific types of case considered. However, none of the examples provided relate to medical treatment, although the provision of care to an adult with dementia is considered as a possible dispute for mediation.…”

“…In a qualitative interview study 14 analysing mediation in CoP disputes (albeit none of these concerned medical treatment), the key positive findings included that mediation can provide greater flexibility in the resolution of disputes and it can offer greater respect for the individuals involved (particularly the patient), for example by tailoring the process to individual needs and being more responsive to those needs. In areas that similarly involve vulnerable parties such as family law, evidence shows that mediation can be seen as a more effective way to resolve disagreements due to its focus on improving communication and developing co-operation.…”

“…For example, less positive findings from the mental capacity law mediations study included that the patient is unlikely to participate or give voice. 14 It is possible that, if participation is facilitated effectively, mediation could help patients and family members come to terms with the issues at the heart of the dispute and help HCPs fully understand the perspective of others involved. The realisation as a parent that you are not legally the final decision-maker for your own child can be shocking and lead to a feeling of powerlessness.…”