Reimagining the Court of Protection: Experiential Evidence about Mental Capacity

In this presentation Jaime Lindsey outlines why the Court of Protection (CoP) needs to be reimagined, thinking specifically about how it might be redesigned to place the subject of proceedings (“P”) at its heart. This involves understanding who that subject is and why her needs, values, wishes and experiences are important to the design of the CoP. The paper starts with an overview of some of the weaknesses of current CoP practice before outlining how the CoP as an institution might be reimagined to better achieve access to justice in mental capacity law disputes. One aspect of this broader reimagining process is explored in this presentation, specifically the role of evidence about mental capacity. Evidence about mental capacity in the CoP is usually provided by an independent, single joint expert, most often a psychiatrist, and this independent, psychiatric evidence is given greatest evidential weight. In contrast, evidence from others, including non-medical professionals such as social workers, or from P’s family and friends, or even from P herself, is attributed less weight in CoP proceedings. As part of this reimagining process that Lindsey argues is required, greater weight needs to be placed on wider, experiential forms of evidence about mental capacity, which most often come from those who know P best and know how she makes decisions in real life contexts.