Charles J has issued guidance for consideration by practitioners and others representing P in the Court of Protection. He has suggested a number of creative ways in which the wider participation of P and vulnerable witnesses in the Court may be facilitated and enhanced. This is of interest to health and social care professionals, commissioners and providers alike, because whilst it is unlikely that you will be representing P directly, in practice those representing P are going to need assistance from you in order to give effect to the guidance.
Impact on Providers and Commissioners
Whilst the steps envisaged in the guidance do not necessarily require the expenditure of additional financial resources; in reality, we anticipate that professionals, providers and commissioners will soon be receiving requests from those representing P for assessments, opinions and advice to meet their obligations under the guidance. These requests will result in additional activities from health and social care professionals, adding to the existing strain and pressure on resources.
In our experience, the demands associated with a case in the Court of Protection already requires providers and commissioners to be flexible and engage in a manner that often falls outside of ordinary commissioned pathways, procedures and processes – this guidance is likely to increase that practice further.
We have set out a summary of the guidance, along with some potential implications for health and social care professionals:
Identification of a person's needs within the Court process
This should start at the earliest possible stage to determine what is necessary and possible for the person's effective participation in the Court process. Health and social care providers may be asked to undertake further assessments to inform this identification process; for example, Speech and Language Therapy assessments to determine how the Court process can be optimally communicated to P to maximise his/her engagement.
P's wishes and feelings
To place the P at the centre of the proceedings third party reports can be obtained from carers, relatives and other professionals concerned with P. However it is important that those representing P should also elicit P's wishes and feelings. Consideration should be given to:
- P's communication abilities and how those abilities and potential can be maximised
- How P's views can best be obtained perhaps in different surroundings or with familiar people present
- How P can be given an explanation of the Court process and the issues before the Court.
Health and social care providers may be asked to undertake specific interactions to identify P's wishes and feelings in relation to the relevant issues and provide detailed reports for the Court.
Attendance at a hearing
Determine early on whether the P might wish to attend the Court hearing and how best to practically facilitate that. The guidance sets out a list of specific suggested considerations. Health and social care providers may be asked to undertake assessments to facilitate attendance; for example an Occupational Therapy assessment or a Risk Assessment for any challenging behaviour and management techniques. In some circumstances, health and social care providers and commissioners may be asked to commission and deliver facilities to enable P to attend a Court hearing.
P meeting with the judge/giving information to the Court
Consider whether the P might wish to meet the judge and/or give information to the Court and the practicalities and purpose of this happening. Health and social care providers may be asked to make arrangements to enable P to speak with the Judge; either in person or through video-link/telephone conversation.
P giving evidence to the Court
The practicalities of P giving evidence should be considered and a Ground Rules hearing to determine the best arrangements for P giving evidence including the need and funding of an intermediary. It should be noted that:-
- The number of cases where a fact finding hearing is required by the Court is relatively rare
- The number of cases where the Court finds that P is competent will be rare.
Vulnerable Parties and Witnesses
This refers to those who are vulnerable by way of disability or age or who may be vulnerable by reason of hear or intimidation from another party. Many of the issues that relate to Pare equally applicable to vulnerable parties and witnesses. Key considerations are likely to focus on the support they might require to give evidence.
Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings
Guidance issued by Charles J on 3 November 2016.
Practical evidence based guidance for practitioners and the judiciary on the effective participation of vulnerable witnesses and parties.
Law Society's Practice Note
Meeting the needs of vulnerable clients- Provides guidance on identifying vulnerability.