My name is Caitlin, and this month marked one year since I started at Reeds in the Court of Protection department.
Before starting, I knew very little about the Court of Protection and how it worked, having never studied this area during my undergraduate or postgraduate degree. Having now had 12 months experience, I have reflected a lot on what I have learnt during my first year working within the Court of Protection.
Collaborative Rather Than Adversarial
One of the biggest things that has taken a while to get used to, is how collaborative the work within the Court of Protection is. Where both undergraduate and postgraduate studies have a strong focus on criminal law or contentious civil issues, I had become used to legal work being black or white, where you would essentially be arguing the complete opposite to the other party.
Starting within the Court of Protection, I found it hard to get my head around everyone working towards the same outcome – whatever is in the protected person’s (P) best interests. This grey, middle ground, is something that I found very unusual as even when you disagree on something, you work together with the other parties through email correspondence and productive roundtable meetings or advocates meetings, to disagree as little as possible.
Litigation Friends
Before working within this area of law, I had no idea just how common litigation friends were in proceedings. Throughout my studies, a litigation friend seemed to be something that rarely comes up in practice, having been mentioned only in passing in the context of children or in rare clinical negligence cases.
In practice, I soon realised that litigation friends are actually used all the time in Court of Protection proceedings. They are essential in making sure that P is represented and their wishes and feelings are properly heard and considered in court. Wishes and feelings evidence is vital within the Court of Protection, as it can really paint a picture of who P is as an individual. This can sometimes feel lost in amongst the legal issues and the number of professionals involved in proceedings.
Before working within this area, it was difficult to visualise just how important it is for those unable to advocate for themselves to have their wishes and feelings properly set out to the court. Being able to visit P has been the most valuable part of the job as I have both seen and heard just how important the decisions being made are to P. Whether that’s through seeing how inappropriate a hospital setting is for long-term care, or through hearing how much P loves where they are and wants to remain in their current placement – it has become clear just how impactful a decision on a person’s care and residence can be for a person.
Capacity
When I first told family that I had gotten a job working within the Court of Protection department, their responses were either “what is that?” or “is that for people who lack capacity?”. I have also been guilty of just shortening or simplifying to say someone “lacks capacity”, and my first few preparation notes would always have the amends “for what?” written next to this.
I quickly came to learn how important it is to avoid just saying someone ‘lacks capacity’, as this can be not only confusing but also unhelpful. Instead, it is important to specify what it is they lack capacity in relation to, as capacity is decision specific, meaning there are a number of wide-ranging domains in which capacity can be assessed. Just some examples of the sorts of decisions the Court of Protection can make determinations within include – residence, care, litigation, marriage, contact with others or finances.
There are instances where capacity can be relatively simple, and P may lack capacity in all the domains relevant to proceedings. Or you may have some cases where capacity is complex. For example, a situation where P may have capacity to engage in sexual relations but not to decide who they should have contact with.
Each case is individual, and care should be taken at all levels to ensure that capacity is considered by domain, and not as some overarching, one title fits all, concept.
Final Thoughts
This past year has been incredibly challenging, trying to learn not only a new role but also a new area of law. At times, it has felt impossible to get my head around all the new concepts, rules and procedures involved in the Court of Protection. But with the help of an incredible team, this year has also been one of the most interesting and rewarding.
The Court of Protection is incredibly unique and is an area where you can noticeably see the impact your work has on the individual at the heart of proceedings. While we may not always see the perfect outcome, we do get to see P in a better position than when proceedings began – which is often just as rewarding.
Working at Reeds with such a supportive team has provided me with the best start I could ask for in my career within the Court of Protection, and I am excited to see what the next 12 months hold.