Understanding Wishes and Feelings in Court of Protection Cases
Supporting clients in Court of Protection proceedings requires careful exploration of their wishes and feelings especially when they are unable to give formal instructions. Trainee Solicitor, Guillaume Doutreleau from our Community Care team explains how we work with vulnerable individuals to understand and reflect their voices in decisions that affect their health and welfare.
Why do wishes and feelings matter in the Court of Protection?
The Court of Protection makes decisions for individuals who lack the mental capacity to make certain decisions for themselves. This includes matters relating to their residence, care and treatment. When making these decisions, the court must consider what the person would have wanted. This is where exploring their wishes and feelings becomes essential.
Exploring a client’s wishes and feelings is a key aspect in health and welfare proceedings in the Court of Protection. Our Community Care team works closely with clients who cannot provide formal instructions because they have been assessed as lacking capacity. Although these wishes cannot be treated as legal instructions, exploring them helps us understand what matters most to our clients.
What are the barriers to communication?
We work with clients who face complex health and welfare challenges. Many of our clients have been diagnosed with conditions such as neurodivergence, schizophrenia, paranoia, PTSD, stroke, and brain injury. These conditions can impede the clarity of their intentions when they express themselves.
To address this, we may use techniques such as:
Asking closed questions
Gradually narrowing down the questions to ensure we are as close as possible to their wishes
We can also use photographs to represent places our clients would like to live. Photographs could also include people they may want to live with or hobbies they may enjoy.
The Court of Protection makes decisions for people who lack the mental capacity to make certain choices themselves. This can include decisions about where they live, the care they receive, and their medical treatment.
A litigation friend is someone appointed to make decisions and give instructions to the court on behalf of a person who cannot do so themselves, usually because they lack mental capacity. In Court of Protection cases, the litigation friend considers the person’s wishes, feelings, and best interests before providing instructions to the solicitor or the court.
Even if someone cannot give formal legal instructions, their wishes and feelings help the court understand what matters most to them. These views can influence decisions made by their litigation friend and ultimately the judge’s “best interests” determination.
What is the role of a Litigation Friend?
Once we have explored our client’s wishes and feelings, we consider them and send them to the client’s litigation friend. The litigation friend will provide instructions on behalf of the client. These wishes are important as they can influence the instructions provided by the litigation friend.
In the context of Court of Protection cases, the judge makes a "best interests determination". This is a decision made on behalf of someone who lacks the mental capacity to make those decisions for themselves. These determinations must be in the best interests of the individual. They take into account various factors including their past and present wishes, values, and beliefs.
Wishes and feelings are crucial because they can influence the decision made by the court which could have a significant impact on the client’s health and welfare - for instance, where the court decides whether an individual should be moved to a different placement.
Our Community Care team has extensive experience supporting vulnerable individuals in complex health and welfare cases, including proceedings in the Court of Protection. Our team has cross-disciplinary expertise and we regularly advise individuals seeking to challenge public body decisions.
If you or someone you support needs help challenging a public body decision or accessing essential support, please contact us to find out how we can help. You can find out more about our team here: Rebecca Hill, Tahmina Islam, Affan Chowdhury and Guillaume Doutreleau.
Our Housing Team recently succeeded in a Court of Appeal case after expert evidence, obtained following a tribunal hearing, confirmed that our client lacked the capacity to manage her Housing Benefit appeal.