Clinicians need to be vigilant about whether the court’s intervention is required because of a dispute or specific legal requirement in relation to their patient. Circumstances may arise when it is necessary to obtain authority from a court regarding the lawfulness of a treatment (either to be given or withdrawn) when a patient refuses, lacks capacity or there is a difference of opinion regarding best interests. In other cases, a judgment from the court may protect a clinician from claims that they have acted unlawfully. Of course, the courts are also there to safeguard the welfare of the patient. We discuss the role of the First-Tier Tribunal (Mental Health) and that of decision-making capacity of patients to participate in tribunal proceedings. We then explain the Court of Protection and its powers, and the pathways for application to the court, as well as the evidence that a clinician may be required to provide. We consider common health and welfare cases that the Court of Protection may be asked to decide on and then discuss the role of the inherent jurisdiction of the High Court in protecting the vulnerable but capacitous.

When thinking about deprivation of liberty, we must look to Article 5 in the European Convention on Human Rights: the right to liberty and security. The first question is why would we want to deprive people with dementia of their liberty? The circumstances of providing care to a person with dementia may be that they lack capacity to consent to those arrangements. The aim of Article 5 is to ensure that no one should be deprived of their liberty in an arbitrary fashion and that it must be in accordance with a procedure prescribed by law. There must also be the right to challenge the legality of the detention by an independent court or tribunal. The legal considerations for practitioners are, therefore, is this person being deprived of his or her liberty and then, how should it be authorised? In authorising a deprivation of liberty, there may be a choice of legal schemes which could apply, and we will discuss the interface between the Deprivation of liberty/Liberty Protection Safeguards and the Mental Health Act. We will then discuss the amendments the Liberty Protection Safeguards will introduce. In the realm of dementia care, this is a highly significant area.

Chapter 7 is the final concluding chapter of the book, which draws together the various theoretical, empirical and normative arguments to make a case for why the CoP needs to be reimagined to better secure access to justice for those affected by its decisions. In short, the concluding chapter argues for a reimagined CoP in which the subject of proceedings is at the centre of its processes and institutional practices at every stage. Such a reimagining ought to be viewed as a mechanism through which to better secure access to the knowledge, expertise and forum in which to secure justice for the embodied subject of CoP proceedings. The chapter concludes by urging those who work in the CoP to think about how their own practices might be more attentive to the issues raised and to facilitate the subject of proceedings to give voice, participate in and shape the proceedings.

Chapter 4 explores the role of alternative dispute resolution, specifically mediation, in CoP proceedings, the first academic piece on this topic. The use of mediation in CoP practice is increasing and there is a trend towards mediation as the primary form of ADR in civil and family justice. In analysing the role of mediation in the CoP, the chapter draws on original empirical data to explore the views of professionals working in mental capacity law. In analysing this data, emphasis is placed on the embodied benefits of flexibly resolving disputes outside of the formalities of the courtroom, as well as the challenges involved in maintaining neutrality, trustworthiness and participation without judicial oversight. The chapter concludes that mediation has an important role to play as a complementary part of the toolkit of a reimagined CoP because it has the potential to provide an improvement in procedural justice. However, the legalism present in discussions of mediation in the empirical data is also highlighted, arguing that if mediation is going to secure an improvement in access to justice, then it needs to be driven by the parties rather than notions of justice predetermined by legal professionals.

Chapter 1 provides an introduction to the work of the Court of Protection (CoP) and mental capacity law, before setting out the core concepts and arguments of the book. The key argument is that the CoP has not effectively achieved access to justice for the subject of proceedings, particularly through its failure to sufficiently place their voice and participation at the centre of its work. This chapter outlines the key issues raised, including the extent to which CoP proceedings involve people affected by its decisions, the type of evidence it considers in reaching decisions on mental capacity and best interests, the ways in which its processes and spaces operate, and use of alternative ways of resolving CoP disputes.

Disputes about care for dying patients are rife with emotions. They are also, unfortunately, quite common. In the event that a patient has not made and documented end-of-life decisions in advance and loses the ability to make those decisions, the baton passes to her surrogate decision-maker. When that surrogate elects to go against the tide of family (or professional medical) thinking, or some other conflict flares up, then the worst-case scenario arises. Disputes about the care of the patient move from the bedside to a more formal setting. The incapacitated patient’s very private dying process becomes the focus of an institutional dispute resolution procedure. All of the patient’s intimate struggles – the details of her unfortunate medical plight and perhaps her family’s conflict – become public and open to discussion and debate.

This chapter examines adult guardianship and powers of attorney in England and Wales today. Section I considers the origin of modern adult guardianship law in Roman law and traces its development in English common law through to the current legal and institutional infrastructure of mental capacity jurisdiction. It then introduces the procedures of appointing a deputy, and evaluates the safeguards provided by the Office of the Public Guardian. Section II focuses on the policy considerations underpinning the legislation on enduring and lasting powers of attorney, the development of policy and legislation over the past 35 years, and potential developments in the foreseeable future. The author also compares deputyship with attorneyship, and explains the advantages of the former over lasting powers of attorney.

This chapter examines adult guardianship and powers of attorney in England and Wales today. Section I considers the origin of modern adult guardianship law in Roman law and traces its development in English common law through to the current legal and institutional infrastructure of mental capacity jurisdiction. It then introduces the procedures of appointing a deputy, and evaluates the safeguards provided by the Office of the Public Guardian. Section II focuses on the policy considerations underpinning the legislation on enduring and lasting powers of attorney, the development of policy and legislation over the past 35 years, and potential developments in the foreseeable future. The author also compares deputyship with attorneyship, and explains the advantages of the former over lasting powers of attorney.