Care home briefing 163 – New guidance to ensure patients participate in Court of Protection cases
Some eight months after the Vice-Chair of the Court of Protection broke with convention and called on the Secretaries of State for Health and Justice ensure people deprived of their liberty have sufficient representation, he has issued new guidance on how these people should be represented.
Mr Justice Charles has provided guidance which is to be taken as a practical suggestion rather than a mandatory checklist. The aim, however, is that the person (‘P’) who is the subject of an application before the Court of Protection is given enough chance to get involved in the proceedings.
It is important for P’s representative — whether a lawyer or a litigation friend — to establish P’s wishes and feelings about the proceedings, and how they would like to participate. This could include:
- Whether they wish to attend court for hearings, and how this could be accommodated
- Whether they would like to meet the judge deciding their case
- Whether they would like to provide ‘information’ at the hearing
- The special measures which may be needed to support other vulnerable witnesses at the hearing
As we know, care providers involved with P may be asked to establish P’s wishes and feelings in connection with the substantive issue before the court (e.g. the change in residence/ proposed treatment). However, P’s wishes and feelings about engaging in their court case should be for their own representative to establish.
It may help to be aware of the guidance, and encourage P’s representatives to consider these points where these discussions do not appear to have taken place, but for now care professionals are apparently expected to keep a respectful distance on this issue.
For more information please contact:
Partner and Head of Healthcare – Providers
T. 020 7227 7282
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.