01 June 2018

Should mediation be compulsory in the Court of Protection?

Should mediation be compulsory in the Court of Protection?  image

In recent times, the Court of Protection has experienced a sharp increase in the volume of applications being made. In fact, in 2017 38,945 orders were made under the Mental Capacity Act 2005 (‘the Act’); an upsurge of almost 50% on applications made the previous year. As a result of this spike, unless a case is considered a high-priority, parties are often confronted by month long waits for an initial listing.

The cost to public bodies, family members, and P can be considerable, and there is an additional emotional cost to adversarial litigation involving ‘warring’ families. In the writer’s experience, as a result of the stress that is frequently experienced in cases such as this, those involved are likely to apply to have the final hearing adjourned. Moreover, health and social care professionals are spending considerable time out of ‘practice’ preparing evidence and attending court hearings. There must be a better way to resolving disputes involving the most vulnerable of our society.

Under the Act and the Court of Protection Rules 2017, mediation cannot be ‘imposed’. However, the court is able to look at the conduct of parties before proceedings when considering costs (rule 19.5(2)(a)). This could include the unreasonableness of a failure to engage in mediation. Additionally, the court has a duty to encourage parties to use an ADR procedure, if appropriate (rule 1.3(3)(h)), but that is ‘after the event’ where cost, time and stress may have already ensued. The Mental Capacity Act 2005 Code of Practice emphasises that in general, disagreements can be resolved by formal or informal procedures, and only where disagreements are ‘so serious’ will they need to be resolved by the court (paragraph 15.2).

It is positive therefore that Alan Eccles, the Public Guardian, recently announced his intention to introduce a mediation pilot, operative from the end of May 2018, to test a new way to safeguard adults at risk by resolving conflict and disputes affecting their welfare pre-issue. Pursuant to s.58(1)(h) of the Act, the Public Guardian has a statutory duty to deal with representations (including complaints) about the way in which a donee of an LPA or a deputy appointed by the court is exercising their powers.

The detail of the scheme is yet to be announced. It is unclear who the mediators will be, what qualifications are required, what criteria will be applied for acceptance onto the scheme, how P will participate, how the scheme will be funded, and over what period the pilot will last.

The approach of the Public Guardian somewhat mirrors the work currently being undertaken in the South West Region where a working group has been tasked to set up a mediation pilot scheme to evaluate whether, and if so to what extent, mediation should be used in comparison to litigation in health and welfare (including serious medical treatment) and property and affairs disputes. The main difference is that the mediation pilot in the South West Region would be operative post issue; where proceedings would (effectively) be ‘stayed’ in order for a consensus to be attempted.

Under the two pilot schemes, a ‘threshold’ will need to be agreed regarding the types of cases that are appropriate for mediation. For example, it may not be appropriate for mediation to be utilised in cases where there are fundamental disputes about whether P has the capacity to make the decision(s) in question, or where serious allegations of abuse against one party are made which are not accepted.

For now, and in order to ensure that cases are dealt with expeditiously and fairly once issued, it is suggested that parties should always consider, as part of the general case management at the first attended hearing, the scheduling of a roundtable meeting after the necessary assessments and evidence has been served. This could take place at the care home or hospital (if appropriate) or at a solicitors office. An agenda should be agreed before the meeting so that the issues to be considered are clearly set out.

The invited attendees to a roundtable meeting would ordinarily be the parties and their legal representatives, relevant professionals, any family member who has a sufficient interest in the case and any other professional included within P’s current and proposed care and support plan. Minutes of the meeting should be taken and thereafter served upon the court so that the Judge is aware of the outstanding issues prior to the next attended hearing. Parties who seek to renege on any agreements reached at the roundtable meeting (without good reason) should be asked to explain their position to the court.

The use of roundtable meetings are helpful in the interim; however, the introduction of the pilot schemes are exciting developments which fully accord with the overriding objective to deal with cases justly and proportionately. Watch this space.

Emma Sutton, Barrister at Serjeants’ Inn Chambers.

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