Court of Protection openness needed

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Court of Protection openness needed


The Justice Secretary, Chris Grayling has queried whether the Court of Protection which is based at the Royal Courts of Justice in London and which deals with the affairs of mentally incapable people in England and Wales can be more ‘open’ regarding mental capacity.

What is the Court of Protection?

The Court of Protection was set up under the 2005 Mental Capacity Act to look after the interests of mentally incapable people.

What does mental incapacity mean?

Someone who lacks ‘mental capacity’ is termed a ‘patient’ which means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs and is regarded as being unable to bring proceedings on his own account.

Section 2 of the Mental Capacity Act 2005 states that a person is unable to make a decision for himself (ie, lacks capacity) if he is unable:

  • to understand the information relevant to the decision
  • to retain that information
  • to use or weigh that information as part of the process of making the decision, or
  • to communicate his decision (whether by talking, using sign language or any other means)

To read the Act in full go to:

What has the Justice Secretary, Chris Grayling said?

Mr Grayling wrote to Sir James Munby, the President of the Family Division of the High Court of England and Wales saying:

“We have already agreed there is a need for greater openness in the family courts, with the intention that we make progress on this as soon as possible in order to ensure public confidence in the single family court on its creation.  A single family court to deal with child custody and care decisions currently split between judges and magistrates is due come into existence next year.  Please consider if you might extend the scope of your work on transparency in the family courts to include arrangements for the Court of Protection.”

Mr Grayling went on:

“I welcome the work you are carrying out to consider with us what progress can be made via rules of court and guidance, which will further the public understanding of family proceedings, whilst also respecting the right to privacy of vulnerable individuals and children in particular.  While we want to ensure that we balance the interests of safeguarding vulnerable adults with those of increasing the transparency of proceedings, I would welcome your views on how we might best achieve this.”

What do the specialists say about mental capacity?

David Healey from Carter & Carter Solicitors commented earlier:

“For the purposes of a claim for accident compensation, to establish whether someone lacks mental capacity, you need a medical expert’s opinion.  Normally this would be the person’s GP or alternatively an expert who the person has been seeing due to their condition or symptoms.”