Communication with protected parties in legal proceedings
Abby Watson provides practical tips on how representatives of protected parties can enhance communication, and prepare them for judicial visits.
As a representative acting on behalf of P (the protected party), one of my initial tasks is to notify “interested parties” of the proceedings. These are individuals who know P, typically family members, friends, or those involved in P’s care, such as care home staff or advocates. In truth, the first phone call is often challenging. After introducing myself and explaining my role to put forward P’s wishes and feelings, I’m usually met with numerous questions, misconceptions and comments like “but they lack capacity” as though their wishes and feelings are invalid.
I understand why though, discussing a person’s wishes and feelings isn’t something we encounter every day, and there is a common misconception of its importance when someone has been deemed to lack capacity. The court is faced with the difficult task of making decisions which will invariably impact P’s life and therefore their views still hold significant weight to cases.
Given the importance, I thought it would be useful to create a guide focused on enhancing communication with P throughout proceedings for those who aren’t familiar with proceedings or having only recently been introduced to this area of the law.
The guide will address the following points:
- Key legal principles for enhancing communication under the MCA
- Practical tips for communicating with P
- Preparing for judicial visits
Key legal principles for enhancing communication under the MCA
The Mental Capacity Act (‘the Act’) is built around five key principles that highlight its core values and essential concepts. Two particular principles come to mind when emphasising the importance of enhancing P’s communication.
Section 1(2) MCA 2005 which reflects to the second guiding principle, requires assessors to “exhaust all practicable steps”. This refers to the efforts that must be taken to support a person in making their own decisions before concluding that they lack capacity. This is such an important principle, if not followed a capacity assessment will be deemed invalid.
Section 1(4) MCA 2005 which reflects to the fourth guiding principle, focuses on an act or decision being made in the person’s best interest. While there is no definition to explain what is meant by best interest, the Act provides a helpful checklist including considering a person’s wishes and feelings. A person’s wishes and feelings can reflect both their past and present views and play a central role to how a case unfolds.
Those supporting P should have both principles at the forefront of their mind when considering ways to enhance effective communication.
Practical tips for communicating with P
Firstly, P should be notified in advance of the visit. I usually contact the placement and have a discussion with the staff to explain my role, the purpose of the visit and send a follow up letter to P which can be read out by staff. The call with staff is also a good opportunity to gather relevant information about P’s current condition, preferences, and any communication needs or barriers that need to be considered.
In some circumstances, it may be that the staff believe notifying a P of a professional visit may cause unnecessary distress due to their lack of understanding. I have had staff inform P that a solicitor is visiting and not fully explain that P is not in trouble with the law which has caused unnecessary worry to P. This could stem from the staff not fully understanding the solicitor’s role in care arrangements. Having said that, staff should be familiar with the Act as they have a duty to explain the deprivation of liberty safeguards, inform P of their rights to challenge it, and ensure the terms of their authorisation are followed.
Before the visit, consider the optimal time to see P. Are they not a morning person and appear more alert in the afternoon or do they have a rigid routine which can impact their willingness to engage and prefer visits at a certain time of day. Again, this is something that can be discussed with those caring for P as they should have a good indication.
Visitors should carefully consider the environment to ensure P is comfortable during the visit. This includes selecting a suitable location that provides privacy and minimal distractions. Depending on P’s preferences and the nature of the visit, some may feel dressing down to less formal wear may also be less intimidating.
Additionally, consider whether P would benefit from having assistance from someone familiar to them to provide additional support or reassurance, such as a family member, support worker, interpreter (if English is not their first language), or advocate. I had a client who was able to communicate in English, but his first language was Welsh, and he was much more sociable when speaking his preferred language.
N.B – P should always be reminded that they have the right to privacy or support before conversations begin. Those attending meetings must remember that all discussions are confidential and should not be shared. Unfortunately, not everyone may have P’s best interests in mind, so it’s crucial to be aware of any signs of coercive behaviour.
During the visit, please take your time, make sure discussions are not rushed and allow pauses in the conversation. Some individuals may require further time to process information due to health conditions and it is important to allow intermittent breaks throughout the visit. Scheduling another visit in the near future may also be necessary to avoid overloading P with too much information.
Before and during the visit, think about the best way to communicate with the individual. How do they usually communicate? You might need to use simple language or short sentences. If the person has a mental health condition or a diagnosis that affects their communication, this should be considered. I once worked with a client who had Asperger Syndrome/Autism. He had communication preferences, like how his name was pronounced and found it difficult to understand questions with choices, like using the word “or.” He found it difficult to continue the conversation until his name or the phrase was corrected.
The person may not be able to communicate verbally and/or might benefit from using communication aids. Tools like communication grids, PECS (Picture Exchange Communication System), easy-read guides, and visual aids are crucial in helping people understand without feeling overwhelmed. If there is no evidence that communication aids have been tried, and you believe they could help, the first step would be to consult a Speech and Language Therapist (SALT). These specialists assess the individual’s communication needs and can recommend the best methods and tailored aids to support effective communication.
At the end of the visit, it’s important to recap what was discussed, as individuals who lack capacity may have difficulty retaining information. Summarising the next steps and giving them time to ask questions or seek reassurance is key. Following up with a letter after the visit is also good practice, as it helps maintain the relationship with P and provides them with a written summary for future reference. For clients who prefer visual aids, sending a photo of yourself can be a helpful memory tool. Seeing a familiar face at the next visit can make it easier for P and will help build the relationship.
Preparing for judicial visits
Section 4(4) of the Mental Capacity Act 2005 requires that P is encouraged and supported to participate in decisions affecting them as much as possible. Judicial visits allow P to communicate their wishes and feelings to the judge directly and allows them to ensure that they are included in decisions made about their life.
P’s views on whether they wish to attend court hearings or meet with the Judge should be sought at an early stage. You’ll need to explain to P what may happen and what support might be available.
Please remember, the judge is responsible for deciding whether a visit should take place. In a recent case Wareham v Betsi Cadwaladar University Health Board & Ors [2024] EWCOP which was centred around the determination of P’s capacity, a request of a judicial visit was declined. P had previously met with the judge remotely at her request, yet on one occasion, the Judge ruled against another visit as he felt that such a visit would not help with understanding her capacity, and any personal impressions from the visit could unfairly affect the proceedings. Explaining to P that the request is a decision made by the Judge should be highlighted to P to help manage expectations.
Once the request is approved by the Judge, it will be for the legal representatives and those who know P best to collectively consider how best to support P.
As well as applying the above practical tips when making arrangements for a judicial visit, the Court of Protection has published some useful guidance on judicial visit to be P which can be found here P, Official Judicial Visits to (Guidance) [2022] EWCOP 5 (10 February 2022) (bailii.org)..
The guidance highlights the need to provide the court with certain key information to help the visit run smoothly. Consideration of whether the visit can be held remotely or whether an in-person visit is required. This is something I ask P; however, obtaining the opinion from those involved with P’s care would also be useful.
It is important to consider whether there is any specific assistance that can be given to help the judge communicate effectively with P. I mentioned a client earlier who had number of communication preferences, when making arrangements for his judicial visit, a short guide of how of how pronounce his name and other communication preferences were sent to the Judge before the visit.
Summary
In conclusion, clear communication with P during legal proceedings is crucial for respecting their wishes and feelings and assisting the court. By understanding the Act and using practical strategies, those supporting P can ensure they can actively take part in important decisions about their life.
Abby Watson is a solicitor at Peter Edwards Law.
Further reading
