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MHLA holds inaugural Court of Protection conference
Sophy Miles, consultant at Miles and Partners LLP, reports on the highly successful first Annual Court of Protection Conference, which was organised by the Mental Health Lawyers Association (MHLA) and was held earlier this month:
The Court of Protection has had a high profile recently, with the increased media presence (for example, in Redbridge LBC v G and others [2014] EWCOP 485, 26 February 2014; the report of the House of Lords Select Committee on the Mental Capacity Act 2005: report of session 2013–14. Mental Capacity Act 2005: post-legislative scrutiny; and the impact on the court of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another [2014] UKSC 19, 19 March 2014.
After an introduction by MHLA chairperson Richard Charlton, Mr Justice Charles, vice-president of the Court of Protection, gave a thoughtful and wide-ranging keynote address, in which he regretted the lack of an administrative jurisdiction in the court, called for the court to expand its presence in the regions and introduced what became a recurring theme for the day: how can the court best hear the voice of P, the incapacitated adult at the centre of the court’s decision?
Melanie Johnson from the Legal Aid Agency led a question-and-answer session, taking questions from delegates on issues such as deprivation of liberty cases, the possible development of supervisor standards in mental capacity work and the approach to difficulties in obtaining financial details for vulnerable clients. (In cases where this proves difficult, she urged practitioners to e-mail: contactcivil@legalaid.gsi.gov.uk, using the subject heading ‘Vulnerable client means assessment’.)
After I delivered a legal update, Sheila Carrick chaired a lively Dimbleby-style panel discussion,‘Who needs what in proceedings before the Court of Protection?’, with Mr Justice Charles, psychiatrist Dr Paul Divall, independent mental capacity advocate Ian Grimwood and barrister Malcolm Chisholm. There were divergent views as to whether it was right for the court to make welfare decisions about P in cases where P was not a party.
After lunch, Susan Hardie gave a perspective from the Office of the Official Solicitor (OS), explaining the OS’s approach to acting as litigation friend of last resort. She encouraged practitioners interested in receiving instructions from the OS to write to the OS, setting out their background and experience and, in particular, indicating the geographical areas they cover.
Malcolm Chisholm gave a highly practical presentation on some of the procedural hotspots in the court, such as urgent telephone applications, disclosure and how to involve P in the court process.
At the end of a packed day, Professor George Szmukler of the Institute of Psychiatry sparked a lively debate with his paper, ‘How mental health legislation discriminates unfairly against people with mental illness’, highlighting the conflicts of the current legal framework with the UN Convention on the Rights of Persons with Disabilities, and describing his ‘fusion’ proposal for a single law where the trigger for involuntary treatment is lack of decision-making capacity rather than mental disorder or impairment.
Richard Charlton drew the conference to a close, though the discussion continued informally afterwards.

About the author(s)

Description: Sophy Miles - author
Sophy Miles is a barrister at Doughty Street Chambers.