The Court of Protection’s role is to make decisions on behalf of protected parties– i.e. people who lack the capacity to make certain decisions themselves.
Sometimes people who have lost capacity will have appointed an individual or individuals to act as their attorney, by virtue of a Power of Attorney. However, many people do not have a Power of Attorney, and whilst it is possible to apply for a deputyship order, this is most often to enable a close relative of the Protected Party to administer that person’s property and affairs.
Deputyship orders are rarely available for health and welfare issues. However, giving one person autonomy over another person’s care, place of residence, social contact, medical treatment, and – in the most extreme cases – life-sustaining treatment can be risky. The Court prefers decisions of this nature to be taken collaboratively by those with an interest in the protected party’s welfare.
Whenever difficult issues arise concerning the protected party, and the people and organisations involved cannot reach a consensus, proceedings will usually begin in the Court of Protection. During that process, if the person at the centre of the proceedings (the protected party) has no capacity to conduct litigation themselves, a litigation friend will be appointed. Quite often, this will be the Official Solicitor and they will normally instruct a firm of solicitors to meet with the protected party and represent the protected party in hearings.
The Court must decide what is in the protected party’s best interests and the concept of best interests includes considering the protected party’s wishes and feelings. If the protected party is able to express what he/she wants or give an opinion, this is conveyed normally through the litigation friend and elicited from social care records, medical records, evidence from relatives, and advocates.
Court of Protection Judge visiting a protected party
Occasionally, in Court of Protection cases, Judges will go personally visit the protected party. This can happen if the protected party would like to give evidence but is unable to physically attend the trial. Mr Justice Charles issued some guidance in November 2016, and this essentially gives a framework for legal practitioners to follow when a protected party wants to speak directly to a Judge, or when it might be appropriate for a Judge to visit the protected party. Normally this will only be where the protected party’s views or wishes have not been conveyed clearly through other means or when there is some doubt over them from the evidence put before the Court.
The recent decision in Re AH ([2022] EWCOP 5) provides some more clarity, and a visit to the protected party will take place subject to the following parameters/restrictions:
- The Judge alone will decide whether a visit to the protected party is appropriate;
- The purpose of the visit is not for the Judge or anybody else to gather evidence;
- The visit may enable the Judge to highlight aspects of the evidence given by the parties, particularly in relation to the protected party’s wishes and feelings;
- The outcome of the visit may be that the Judge makes further enquiries about the other parties involved in the case;
- The Judge will normally see the protected party independently of their family; and
- A note of the meeting must be taken; and
- If the outcome of the visit has “bearings” on the best interests criteria, the Judge may invite the parties to make further submissions to Court.
Comment
Essentially, a judicial visit to the protected party is not something that will happen as a matter of course or something that takes place as a means of the protected party giving evidence. Still, it might well be an option the Court chooses to take when a particularly complex issue falls to be decided.
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