A smiling carer chats with an elderly lady

Court of Protection: Autonomy and empowerment of the individual – the view from the other side

Autonomy and empowerment were discussed with great enthusiasm at our recent conference. The focus of the day was on health and welfare matters and the implications on P.

Health and welfare matters in the Court of Protection come under the auspices of the family court. This means that there are parallels to be drawn with the treatment of children in the courts and that their welfare is paramount.

It was fascinating to listen to the various speakers talk about their involvement in some extremely high profile cases concerning individuals and their welfare. We heard from Professor Hugh Rickards about his clinical experience of assessing capacity, barrister Simon Burrows spoke about the Cheshire West decision and the far reaching implications; six months on – are we all living in a ‘gilded cage’? The keynote speaker, Mr Justice Baker, was utterly compelling in his views on the treatment of P in the Court and the way that P and their welfare must be paramount (again, echoing the overriding principle of the Children Act).

I could go on! As a property and financial affairs lawyer who specialises in mental capacity and Court of Protection applications, the world of health and welfare practice has striking implications. Very often, we are called upon to consider whether the Court should authorise gifts or a statutory Will. This can often come down to a rather clinical exercise of ensuring that P’s financial health is catered for and I think that there is a danger of forgetting that P is at the centre of any decision. It would be very easy to look at the balance sheet, decide that P has enough money to pay for their care and consider my obligations discharged.

For me, the conference reinforced the fact that P’s wishes, feelings and best interests must be at the heart of any decision made by the Court and those involved in P’s affairs – whether that decision is about where they are to live, or whether their excess assets can be gifted to a close relative who enjoyed this patronage prior to P’s incapacity.

Most of all, even though P is anonymous in court proceedings, we must never forget that they are a real person who needs to be taken care of.

For further information on this issue please contact Jess Flanagan.