Voices of vulnerable people

Almost 18 months have passed since practice direction 2A was issued on 1 July 2015. The practice direction was intended to emphasise the importance of ensuring that P takes part in Court of Protection proceedings where appropriate and that the court is properly informed about P’s situation. It is designed to ensure P’s participation in proceedings is proportionate to the issues involved and the nature of the decisions, without causing what is described as ‘excessive delay’.

More recently, on 3 November 2016, Mr Justice Charles also released practical guidance as to how practitioners might enhance the participation of P in proceedings about him or her. While this guidance is primarily directed towards health and welfare cases in the court, it is also likely to be of assistance in some property and affairs cases, especially as the two are so often linked.P’s voice

The principles putting P at the centre of decision making are enshrined in section 1 of the Mental Capacity Act 2005.

The ‘best interests’ principles are set out in section 4, and in particular section 4(4), which provides that the decision maker ’must, so far as is reasonably practicable, permit and encourage the person to participate… in any act done for him and any decision affecting him’.

Section 4(6) underlines the subjective nature of decision making, whereby ‘so far as is reasonable ascertainable’ P’s ‘past and present wishes and feelings’ and the ‘beliefs and values that would be likely to influence his decision if he had capacity’ must be considered.

The code of practice issued with the Act backs up this statute, particularly chapter 3, ‘How should people be helped to make their own decisions?’.

The European Convention on Human Rights and article 8 (the right to respect for private and family life) and article 10 (the right to freedom of expression) of the Human Rights Act 1998 also put P at the heart of decision making. This was addressed in The NHS Acute Trust v C [2016] EWCOP 17, a case about a possible intervention during the pregnancy of a woman without capacity to make the decision at the time it had to be made.

Judges have, generally speaking, always taken the trouble to take P’s views into account. For example, Mr Justice Cobb’s decision regarding the capacity of a 20-year-old woman to make decisions about her life and lifestyle in WBC (Local Authority) v Z [2016] EWCOP 4 shows the huge effort made by all concerned to apply the law to the difficult facts. P gave evidence at the hearing.

Rule 3 of the Court of Protection Rules 2007 already provides for ‘the overriding objective’, including, ’so far as is practical’, ensuring that P’s interests and position are properly considered.

It is the words ‘so far as is practical’ which may cause problems, along with the words ‘so far as is reasonable ascertainable’ in section 4(6) of the 2005 Act.

There is now an additional rule 3A intended to ensure ‘P’s “voice” is properly before the court’ so that it is ‘in a position to make a properly informed decision at all relevant stages of a case’.

Rule 3A requires the court in every case to consider whether it should make one, or more, of a number of possible directions for securing P’s participation by:

• Joining P as a party;

• Appointing an accredited legal representative;

• Appointing a representative;

• Giving P the opportunity to address the judge directly or indirectly; and

• Using some other means which meets the overriding objective.

It is clear that the test is a subjective one and that the court is required to have regard to a range of factors to determine what participation of representatives is needed. The appointment of litigation friends and accredited legal representatives is already covered by part 17 of the 2007 Rules. A legal representative is already defined in rule 6 and is not intended as a substitute for a litigation friend but as an alternative in a suitable case or in the early stages of the case.

So, how to choose between a litigation friend and an accredited legal representative? The practice direction gives three factors to consider:

• Whether there will be a need for expert or other evidence to be obtained and filed, or other material gathered, on P’s behalf;

• The nature and complexity of the case; and

• The likely range of issues.

Some cases do not require either a litigation friend or an accredited legal representative, and a representative under rule 3A(2)(c) could be appointed as a friend, an independent mental capacity advocate (IMCA), an advocate appointed under the Care Act 2014, a family member, or anyone with relevant knowledge.

A rule 3A representative must be able to discharge their functions fairly and competently. If a difficulty arises then the court can vary the terms of the appointment or appoint someone else.

Whose perspective?

As an experienced judge in this sensitive area, Charles J felt that more guidance was necessary. A series of cases was listed before him in early 2016 (Re J and others (Deprivation of Liberty) [2016] EWCOP 15). The case of VE clarified the role of rule 3A representatives, and the judge issued an explanatory note for a family member or friend appointed as such: ‘In short, the court is asking you, as someone who knows the position on the ground, to consider whether from the perspective of P’s best interests you agree or do not agree that the court should authorise P’s packet of care and support.’

Charles J’s November guidance addresses which parties and witnesses can be considered vulnerable. It makes it clear that it is not just those who are vulnerable by way of disability or, in the case of children, age, but also those who may be in fear of intimidation from another party or individual – an important distinction.

The word ‘participation’ is also given a broad meaning to include giving evidence or information to the court as part of the judicial process, whether as a party or not, and also assisting in the involvement and understanding of P in particular in that process and its outcome.

The judge makes it clear that effective participation is not the same thing as determining best interests in the context of decision making, or determining past or present wishes and feelings under the Mental Capacity Act.

The guidance accepts that what is necessary may be self-evident in some cases but less so with ‘more subtle cognitive or other impairments’. It stresses that consideration should be given to the support and assistance needed at the earliest possible stage.

Varied sources

For P to be placed at the centre of the proceedings, P’s wishes and feelings on the issues before the court are of vital importance. The court expects to see reports from a wide variety of sources, including carers, care staff, relatives, professionals, IMCAs and other advocates, legal representatives, and of course from P.

In paragraph 11 of the guidance, Charles J highlights four particular cases where care is needed:

• P’s communication abilities and whether speech and language therapy and communication aids are needed;

• Whether P needs help from statutory or privately financed services to help with communication;

• How P’s views can best be obtained, such as looking at the different surroundings and who is present, allowing for confidentiality issues; and

• How the issues can be explained to P in a way they can understand, recognising that ‘it is unlikely in most cases to be necessary or desirable for any detailed or legalistic explanation to be given to P. Legal language should be avoided and the focus must be on the issues before the court.’

Attendance at court

P’s views on attending the court hearings, including meeting the judge, should be sought at an early stage, and it should be explained to P what this may mean. Considerations include:

• The impact on P of the hearing being in public and what directions about this should be sought;

• Liaising with the court staff regarding P’s attendance;

• Seeking court staff views as to any practical arrangements that can be made;

• Can the court in question accommodate P’s visit or would another venue be preferable?

• Would a video link be suitable?

• What is P’s understanding of the courtroom situation?

• Should the layout of the courtroom be amended, in particular who sits where, including P;

• Is a prior visit by P to the courtroom practicable or desirable?

• Would pictures of the courtroom (if permissible) and the parties and their representatives be helpful?

• What practical arrangements are needed (for example, who accompanies P, physical access, toilet facilities, the availability of a side room, and so on)?

• Will P need a break in the proceedings? and

• Where and how the court’s decision will be communicated to P.

Careful consideration must be given to whether P should meet with the judge and, if so, where and who else should be present, and whether the meeting should be recorded by note, video, or audio.

Should P give evidence to the court? This is provided for in rule 95 of the 2007 Rules (as amended). Consideration should be given as to whether P should attend the court or whether evidence should be given by video or audio link, how questions should be drafted, and whether the hearing should be in public.

It is likely that hearings will be about P’s wishes and feelings rather than fact finding, which is rare in the Court of Protection. Extra care must be taken where fact finding from P is needed and careful advance preparation would be necessary before a ‘ground rules hearing’. Such hearings are used in criminal and family proceedings involving vulnerable witnesses, together with intermediaries, and could also be considered here. Many of the same points arise in respect of P as they do with witnesses: both will need support to give evidence.

The guidance concludes with reference to the Advocates’ Gateway website, which gives much useful help for vulnerable witnesses and parties, including toolkits for practitioners and the judiciary. The Law Society’s invaluable ‘Meeting the needs of vulnerable clients’ practice note is also a must-read in this area.

Elizabeth Eyre is a senior associate at Barlow Robbins

@barlowrobbins www.barlowrobbins.com