1.7First, while it has deep historical roots, the Court of Protection in its new incarnation with jurisdiction to take decisions not solely in regard to the property and affairs of those without capacity but also in regard to their health and welfare has been in existence only since October 2007, and it is still therefore a comparative newcomer. Its practices and processes are in significant measure still being worked out. This book is, in part, a contribution to the development of those practices and processes, although we have sought to make clear whenever we move beyond description into prescription.

1.8Second, this book covers the span of the Court of Protection’s work. However, only a very small number of applications relating to property and affairs received by the court are contentious; the vast majority are decided ‘upon the papers’ by either a judge or an authorised court officer. Those sections of the book which relate to the determination of contested applications, and, in particular, to hearings, are inevitably very much focused upon health and welfare applications.

1.9Third, insofar as the book deals with the determination of health and welfare applications in particular, it does so from a starting point that there is a wealth of valuable guidance to be found from proceedings relating to children (and especially care proceedings). It is vital to emphasise, however, that we are not saying that incapacitated adults1The Court of Protection can, of course, take decisions in relation to children of 16 and 17. This jurisdiction is not often invoked. We touch on the position of the children where relevant; see in particular chapter 11. are to be equated with ‘big children’. Very far from it – the law that Court of Protection judges have to apply and the factors to take into account when considering what substantive decision to take upon an application relating to an incapacitated adult are – and should be – very different from the law and factors that apply in relation to a child. However, the forensic processes in both types of proceedings are – we suggest – very similar, and for very good reason: they are above all designed to ensure that, as best as possible, a judge is put in a position to take the decision that it right for a person who is not a protagonist in the proceedings but their subject.2See, in this regard, The Honourable Mr Justice Baker, ‘Reforming the Court of Protection: lessons to be learned from the Family Justice Reforms’ [2014] 4 Elder Law Journal 1, 45–50.

1.10Fourth and finally, hanging over the entirety of the book is a very large question as to whether the MCA 2005 is compatible with the United Nations Convention on the Rights of Persons with Disabilities. There is a strong argument that the MCA 2005 is not, at least in its current form. We summarise the key points in relation to this issue in chapter 25, but note that it is one that is likely to rise further up the agenda as the Committee on the Rights of Persons with Disabilities turns its attention to the position of the UK in 2017.

1.11It should be noted that the law relating to capacity issues is significantly different in both Northern Ireland and Scotland; this book should not be used as a guide to the principles and practices adopted in those jurisdictions.3Readers are directed, in particular, to chapters 12 and 13 of Ashton et al, Court of Protection Practice 2016, Jordans; and also, for a fuller discussion, to Frimston et al, The International Protection of Adults, Oxford University Press, 2015.

1.12In this book we use ‘P’ to refer to the person whom it is said lacks capacity to take the material decisions.