Court of Protection & Mediation

The Mental Capacity Act 2005 (‘MCA’) is a very important piece of legislation about decision making for those who lack capacity to make decisions for themelves.

It contains two principles that must always be considered:

Best Interests: an act done, or decision made on behalf of the person who lacks capacity must be done, or made in his best interests.

Least Restrictive Alternative: before the act is done, or a decision made, consideration must be given as to whether the outcome could be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action .

The MCA 2005 Code of Practice provides guidance on the best ways to settle disputes about issues and promotes the use of mediation.

The use of mediation promotes the principles of best interests and less restrictive alternatives in a way that is rarely achieved by court proceedings because:

• It is usually less stressful, more cost effective and quicker than court proceedings
  
• It offers a wider range of solutions than the court
  
• It can settle a dispute in a way that is less restrictive for the person
  
• Where people are not communicating well or understanding each other’s points of view, it can improve relationships and prevent future disputes. 

Some applications to the Court of Protection by applicants falling into the categories under s 50(1) of the MCA 2005 do not require permission.  However, other applicants do require permission and in considering such applications, the court is subject to the principles of the MCA 2005.  When deciding whether to grant permission for an application to be made the court is required to consider the reasons for the application, the benefit to the person lacking capacity and whether the benefit can be achieved in any other way.  It can therefore consider whether the parties should be directed to use mediation before an application is issued.

One of the findings from the research carried out by the Canadian Centre for Elder Law (2012) was that often those who initially do not agree to mediation, will attend when ordered to do so by the court. Futhermore, once they attend and realise the benefits mediation can offer, they are more likely to actively participate in the mediation.

Therefore applications to the Court of Protection can include a request for an order that the parties attend mediation. Once proceedings are issued, the court can consider whether all or any of the issues, which are the subject to application are suitable to be referred to mediation. It may order the parties to attend mediation and can decide whether it merely orders the parties to attend, or whether to include the words ‘with a view to reaching an agreement’. This does not mean that the parties are being ordered to come to an agreement. The court may decide to make such orders at an early stage or later in the proceedings.

The importance of mediation in Court of Protection matters was emphasised by Mr Justice Henderson in the case of In the Matter of S, D v R and S [2010] EWHC 2405 (COP), [2010] COPLR Con Vol 1112. In this case while Mr S was found not to have the capacity to make decisions in relation to the litigation, he had clear wishes concerning the case, which could not necessarily be met by the court proceedings.
Mr Justice Henderson said: ‘It is the kind of case, I would venture to add, which cries out for mediation and a realistic settlement… A trial of the action is likely to be a painful and damaging experience for all concerned, and I repeat my hope that the parties will even now, be able to come to a settlement.’

Capacity

Mediation cannot be used to determine capactiy.  However, this does not make the use of mediation inappropriate for people who lack capacity. 

It can be used to resolve disagreements about a person’s best interests, for example, where there is a family dispute and the best interests decision maker has to balance the views or concerns of a number of people within the family.

It can also be used where there is a dispute between family members and professionals about, for example, the care, accommodation and contact arrangements for a someone who lacks capacity. Mediation can help them agree a way forward and make suitable best interests decisions.

Where an Independent Mental Capacity Advocate (‘IMCA’) wishes to challenge the decision of a best interests decision-maker and they have exhausted all other means of resolving this through discussion, mediation may help to narrow the issues and help the parties come to an agreement, without the need for court proceedings

Deprivation of Liberty Safeguards

Mediation may be particularly helpful in resolving disagreements under the safeguards to avoid unnecessary applications to the Court of Protection.