Non-Adherence to Anglo-Saxon Jurisprudence and the Adversarial System

The English legal tradition is rooted in the adversarial system, where parties control litigation, present evidence, and contest each other before an impartial judge. The Court of Protection (CoP), however, operates in an inquisitorial manner—contrary to that tradition. As one commentary notes:

“The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court… to assess whether an adult is lacking capacity and, if so, make best-interest decisions.”

This divergence raises concerns about fairness. Parties—especially family members—lack control over scope and direction, and cannot fully contest claims or evidence. Such a departure from adversarial norms undermines the CoP’s legitimacy in resolving contested legal issues.

Inequality of Arms: Health Trusts and Local Authorities vs. Families

Equality of arms means all litigants must have comparable resources, representation, and ability to present their case. But in the CoP:

Families often face public bodies like local authorities or NHS trusts with vastly greater resources.

Legal aid limitations exacerbate this imbalance.

A notable case highlighting systemic issues was when Mr Justice Charles adjourned four CoP cases to urge the government to fund legal representation for vulnerable parties—citing that without it, the Court would breach Article 5 ECHR (liberty rights) and common law principles. He labelled this situation a by-product of austerity and resource failure.

The AJ v A Local Authority (2015) case also illustrates concerns: an 88-year-old with dementia (AJ) had to rely on a niece and social workers to represent her interests amid DOLS procedures, raising questions about her capacity to challenge her deprivation of liberty.

Further, in Re JM (2016), the Court faced a “Catch-22”: no pool of willing representatives (rule 3A) existed, and local or central government offered no help. The Court stayed proceedings and joined the Centre (MOJ and Dept of Health) to compel solutions. These examples show how families and P often face institutional disadvantages within the Court.

Admission of Unverified and Hearsay Evidence

Anglo-Saxon jurisprudence typically prohibits hearsay unless expressly allowed, with heavy safeguards. Yet the CoP admits hearsay more readily. In London Borough of Enfield v SA &

Ors (2010), Macfarlane J confirmed that hearsay is admissible, particularly from those incompetent to testify but cautioned that weight must be assessed case by case.

While the judgment is careful, mere admissibility of unverified hearsay risks cases being decided on untested statements, reducing reliability. In traditional adversarial courts, hearsay without cross-examination would typically be excluded or heavily scrutinized.

Arbitrary Decision-Making and Excluding Pertinent Evidence

A key principle of fair trials is full disclosure and consideration of all relevant evidence. In London Borough of Enfield, Macfarlane J emphasized the importance of disclosure, especially in “Achieving Best Evidence” interviews—but lamented that these were not disclosed in prior proceedings.

Furthermore, CoP practice acknowledges the need for open justice and full participation:

Guidance on closed hearings/materials stresses that fairness and Article 6 ECHR generally require parties to see adverse material and respond to it.

Criticism of secret hearings notes that many intimate decisions (e.g., sexual autonomy) are made in the CoP—but in secrecy—stifling transparency and public oversight.

In effect, relevant evidence can be excluded (through non-disclosure or closed proceedings), and material may be considered in private—undermining the adversarial principle that parties respond to all contested points.

Over-Reliance on Lower-Ranking Judges in Complex Proceedings

The CoP frequently deals with highly complex factual and legal questions (e.g., capacity, deprivation of liberty, medical ethics). Yet many decisions fall to deputy judges or similarly lower-ranking judiciary whose expertise may not match the complexity:

There is no clear hierarchy or consistent assignment of senior judges to such weighty cases.

For example, in Barnet, Enfield and Haringey Mental Health NHS Trust v Mr K (2023), high-stakes decisions involving life-altering treatment were made swiftly—amid junior doctors’ strikes—and required expert legal judgment.

The complexity and gravity of such cases arguably demand more senior judicial oversight than is routinely provided in the CoP.

Concrete Case Illustrations

· London Borough of Enfield v SA & Ors (2010) Hearsay admissible, but disclosure lacking and weight questionable. Mondaq

· Re JM (2016) Procedural fairness crippled by lack of representative pool; Court had to adjourn and involve central government. Mental Health Law Online

· AJ v A Local Authority (2015) DOLS procedure and family representation issues illustrate inequality. Court of Protection Hub

· Barnet Enfield & Haringey NHS Trust v Mr K (2023) Highly complex medical/factual situation handled under pressure by possibly less experienced judges. Mental Capacity Law and Policy

· Practice guidance on closed hearings (2022) Emphasizes fairness but also highlights how CoP allows closed material, conflicting with open justice. Courts and Tribunals Judiciaryopenjusticecourtofprotection.org

· 2016 judges’ plea. Mr Justice Charles argued legal aid is essential and CoP’s current setup risks ECHR breaches. The Guardian

Conclusion: The Court of Protection Is Not a Suitable Forum

In sum:

1. It rejects adversarial norms fundamental to common law tradition.

2. It institutionalises inequality, disadvantaging families and unrepresented parties.

3. It permits untested and hearsay evidence, compromising evidential reliability.

4. It permits expert evidence from professionals aligned with institutional positions who are not independent.

5. It restricts participation and disclosure, enabling arbitrary or opaque decision-making.

6. It handles highly complex, high-stakes cases with insufficient judicial seniority, risking errors.

7. These issues have materialised in real cases, undermining fairness and legitimacy.

While the CoP was created to protect those lacking capacity, these structural flaws suggest it fails to meet the standards of a fair, just, and transparent legal forum. Reform—or alternative mechanisms aligned with adversarial fairness—should be considered.

Structural and Procedural Reforms

Restoring Adversarial Balance

Shift the CoP closer to the adversarial model by allowing parties, not the court, to set the scope of litigation.

Require full disclosure of evidence, with narrow exceptions (e.g., genuine national security or safety).

Tighten the rules on hearsay—permitting it only under strict necessity and subject to cross-examination.

Guaranteeing Equality of Arms

Expand legal aid so that families and vulnerable parties are represented on equal terms with public authorities.

Introduce a publicly funded independent advocacy service to support families unable to afford legal counsel.

Require NHS Trusts and local authorities to provide neutral expert witnesses, not only those aligned with their institutional position.

Judicial Oversight and Expertise

Require that all cases involving serious medical treatment, deprivation of liberty, or end-of-life decisions be heard by senior High Court judges, not deputies or district judges.

Create a specialist judicial panel with training in medical ethics, human rights, and capacity law.

Transparency and Open Justice

Presume that hearings should be open to the public (with anonymisation for patient privacy).

Prohibit closed material unless the parties and their representatives can access it.

Establish independent reporting panels to review systemic issues raised in CoP judgments.

Alternative Institutional Models

Specialist Tribunal Model

Replace the CoP with a Capacity and Autonomy Tribunal, akin to the Mental Health Tribunal.

Panels would include:

A judge (law)

A medical practitioner (medicine/psychiatry)

A lay member with social care or lived-experience expertise

This would democratise decision-making and bring expertise directly into the adjudication process.

Mediation and Arbitration Framework

Require mandatory mediation before CoP litigation, especially in family or local authority disputes.

Use independent medical ethics arbitration panels for cases involving treatment withdrawal, instead of a legalistic courtroom battle.

Regional Community Panels

For less complex welfare and residence cases, establish regional community capacity panels, chaired by retired judges or senior practitioners, to make quicker, less formal decisions with community involvement.

This would reduce pressure on the CoP and give decisions more local legitimacy.

Integration with Human Rights Bodies

Transfer certain functions (e.g., deprivation of liberty appeals) to an independent human rights tribunal with binding powers.

Ensure all decisions explicitly comply with Article 5 (liberty) and Article 8 (family/private life) of the ECHR.

Safeguards for Vulnerable Adults

Introduce mandatory independent representation (a “capacity defender”) for every person lacking capacity, similar to the Official Solicitor but with regional offices and wider coverage.

Create a special fund to finance expert evidence for families, ensuring they can challenge medical or social care opinions.

Legislate for strict evidential standards, requiring corroboration where allegations are based on hearsay.

Comparative Lessons

Canada (Consent and Capacity Board): Uses panels of judges, doctors, and lay members to resolve disputes quickly, often within days.

Scotland (Adults with Incapacity Act): Involves the Sheriff Court, providing more robust judicial oversight and community involvement.

New Zealand (Family Court model): Prioritises less adversarial but still evidence-based approaches, with strong safeguards for participation.

Summary: The Court of Protection could be reformed by strengthening adversarial safeguards, improving representation, ensuring senior judicial oversight, and opening up its processes. Alternatively, replacing it with a tribunal-style body or hybrid community/ethics panel system may offer a more transparent, balanced, and expert-driven forum.

Comparative Policy Proposal — Replacing the Court of Protection with a Capacity & Autonomy Tribunal

Executive summary

The current Court of Protection (CoP) was created to protect adults who lack capacity. However, recurring concerns about adversarial imbalance, reliance on hearsay, uneven judicial expertise, secrecy, and resource inequalities suggest the need for structural reform. This proposal sets out a practical, comparative blueprint to replace the CoP with a specialist Capacity & Autonomy Tribunal (CAT), a hybrid tribunal/bench model that combines legal rigour, multi-disciplinary expertise, adversarial safeguards, and stronger procedural protections for vulnerable parties.

Key features:

· Specialist tribunal panels (judge + medical + lay member with lived-experience/social-care knowledge).

· Stronger adversarial safeguards, mandatory independent representation for P where necessary, and tighter hearsay rules.

· Transparent hearings by default with narrow, reviewed exceptions for closed material.

· Regionalised structure with central oversight and specialist appellate review by a High Court division.

Objectives & principles

The CAT should be designed to achieve:

1. Fairness & equality of arms — ensure parties (family/P) are not disadvantaged versus public bodies.

2. Legal and clinical expertise — decisions informed by both high-quality legal reasoning and relevant clinical/ethical input.

3. Adversarial safeguards — allow parties to test evidence, cross-examine witnesses, and control litigation scope within appropriate rules.

4. Transparency & open justice — default public access with strong anonymisation and narrowly-defined closed material procedures.

5. Speed, proportionate process, and accessibility — quicker resolution for welfare/residence matters while preserving rigorous procedure for life-and-liberty disputes.

6. Human rights compliance — explicit integration of ECHR Articles 5 & 8 in procedure and reasoning.

Comparative models: lessons learned

Canada (Consent and Capacity Board / Province-level variations)

Panel-based decisions with non-legal experts; fast timetabling for urgent liberty matters. Lesson: multidisciplinary panels speed practical decisions but must be balanced with legal safeguards.

Scotland (Adults with Incapacity mechanisms; Sheriff Court involvement)

More robust judicial oversight with court routes for serious deprivation of liberty; community input. Lesson: stronger judicial hierarchy improves protection of fundamental rights.

New Zealand (Family Court / welfare-led approaches)

Focus on less adversarial process with mediation and family participation. Lesson: mandatory dispute-resolution options reduce litigation and preserve relationships.

Proposed institutional design

Name and mandate

Capacity & Autonomy Tribunal (CAT) A statutory body replacing the Court of Protection for all matters concerning capacity, best interests, deprivation of liberty (civil), and specified personal welfare/health disputes. Matters involving crimes, wills, or property probate remain outside scope (or handled in parallel routes).

Structure

· National Leadership: President of the CAT (High Court judge or equivalent senior judiciary) with a national registry, rules committee, and quality assurance unit.

· Regional Tribunals: Regions (e.g., 8–12) with full-time tribunal judges and administrative staff.

· Panels:

o Standard Panel (for routine welfare/residence disputes): Tribunal judge (chair) + Lay member (social care / lived experience).

o Complex/Serious Panel (for deprivation of liberty, life-sustaining treatment, forced treatment): Tribunal judge (must be a senior judge, e.g., High Court or designated senior tribunal judge) + medical expert (psychiatrist/physician) + lay member with ethics/social care background.

· Emergency fast-track stream: Immediate single-judge hearings for urgent liberty cases, followed by full panel review within a fixed short period (e.g., 7 days).

Jurisdiction

· Determination of capacity for specific decisions.

· Best-interest determinations (residence, care, treatment).

· Authorisation and review of deprivation of liberty arrangements (civil).

· Appointment, supervision, and challenge of deputies/guardians.

· Appeals and judicial review routes (see below).

Procedural rules: balancing inquisitorial utility with adversarial protections

Scope-setting & case management

· Parties propose scope; the tribunal may refine scope for proportionality but cannot expand issues without party notice.

· Mandatory early directions hearing in all cases to set:

o Issues list

o Witness list and timing

o Disclosure orders

o Whether mediation is required

Evidence and hearsay

· Default rule: oral evidence under oath + cross-examination where oral evidence is available.

· Hearsay admissible only where:

o the witness is genuinely unable to attend (e.g., lacks capacity, is deceased), and

o corroboration is available or the tribunal orders viva voce evidence by an alternative witness or expert.

· Any hearsay admitted must be identified on the issues list; the admitting judge must give reasons and direct proportionate testing (e.g., short oral evidence, expert verification).

Disclosure and document handling

· Automatic disclosure obligations on public bodies (NHS trusts/local authorities), with sanctions for non-compliance (cost orders, adverse inferences).

· Parties must disclose expert reports to each other within fixed timeline; “late” expert evidence requires court permission.

Closed material / privacy

· Default: open hearings with anonymisation orders where appropriate.

· Closed material regime only where stringent tests are met (necessity & proportionality) and where both parties’ legal representatives — including the independent representative for P — can see the material (special advocates only where unavoidable).

· Annual external review of closed orders by the national oversight panel.

Representation & legal aid

· Mandatory independent representation for P in all deprivation of liberty, serious medical treatment, or contested capacity cases (a “Capacity Advocate/Defender”), funded by central legal aid or a dedicated statutory fund.

· Families are eligible for legal aid on means and merits; if family are litigants-in-person, the Tribunal must identify and appoint independent legal assistance for P where conflicts exist.

· Right to expert evidence funded by the tribunal in cases where the party cannot afford it and the evidence is material.

Case types and timetables

· Urgent liberty cases: hearing within 48 hours; full panel review within 7 days.

· Serious medical treatment / end-of-life: pre-hearing ethical review and full panel within 21–28 days.

· Routine welfare/residence: streamlined timetables (e.g., 6–12 weeks) with mediation first.

Judicial oversight, appeals and review

· First-tier decisions by CAT panels; appeal on points of law or significant procedural unfairness to a dedicated Capacity & Autonomy Appeal Chamber of the High Court (or a specialist division), with expedited timetabling for liberty matters.

· Judicial review remains available for errors of jurisdiction, but appeal routes should be designed to reduce unnecessary JR litigation.

· Oversight by President of the CAT with annual reporting to Parliament on systemic issues, closed hearings, resource shortfalls, and ECHR compliance.

Safeguards to protect P and human rights

· Capacity Defender role — independent and statutory with duty to represent P’s wishes and rights, challenge evidence, and instruct experts.

· Best-interests checklist codified and integrated with ECHR obligations (Articles 5 & 8) — tribunal must provide explicit proportionality reasoning when liberty or private/family life is impacted.

· Independent monitor for long-term detention/authorisations: periodic reviews (3 months, then every 6 months).

· Data protection & anonymisation safeguards in public reports and judgments.

Funding, resourcing & equality of arms

· Central funding ring-fenced for:

o CAT registry operations,

o Capacity Defenders and public legal aid for P/families,

o Tribunal-appointed expert witnesses.

· Financial parity rules: public bodies must disclose costs and cannot subsidise litigation advantage through undisclosed expert reserves.

· Efficiency measures: digital filing, remote hearings where suitable, national expert panel to reduce duplicated expert costs.

Transitional arrangements (how to move from CoP to CAT)

1. Primary legislation to create CAT and set jurisdiction (example statutory timetable: Royal Assent + 12 months to stand up).

2. Shadow phase (6–12 months):

o Appoint President and senior panel members,

o Recruit regional registries,

o Pilot CAT procedures on a subset of cases (e.g., welfare/residence matters).

3. Full roll-out (months 12–24): transfer cases, retire CoP appointments, national training program for judges and Capacity Defenders.

4. Legacy cases: transitional rules to finish sensitive ongoing litigation or transfer with consent.

Legislative and regulatory changes required (high level)

· Repeal/replace core CoP enabling provisions with CAT statute.

· Amendments to:

o Mental Capacity Act (to align definitions, representation rights, and procedural safeguards).

o Mental Health and health-care legislation where deprivation or treatment authorisations intersect.

o Legal Aid Act (to create ring-fenced funding for Capacity Defenders).

· Secondary legislation to set tribunal rules, panel composition, and closed material procedure.

Accountability, quality assurance & oversight

· National Rules Committee (including judicial, clinical, and civil society membership) to keep rules under review.

· Independent Inspection & Audit Unit to publish annual metrics: timeliness, appeals rate, use of closed hearings, proportion of litigants-in-person, and user satisfaction.

· Parliamentary reporting with annual statement on ECHR compliance.

Costs, benefits & impact assessment (summary)

Costs

· Initial set-up: recruitment, training, IT and property.

· Ongoing: Capacity Defender network, tribunal registry running costs, expert panels.

Benefits

· Greater procedural fairness and equality of arms.

· More consistent, expert-informed decisions reducing appeals and judicial review costs long-term.

· Increased transparency and public confidence.

· Faster resolution for routine cases and better protection of liberty in urgent cases.

Net effect: Upfront public investment likely offset over time by reductions in costly litigation, improved outcomes, and fewer successful appeals/JR claims against the state.

Implementation roadmap — suggested timetable

1. Months 0–6: Policy approvals, draft legislation, stakeholder consultation (including NHS, local authorities, patient advocacy groups, legal profession, judiciary).

2. Months 6–12: Parliamentary passage; set up transitional implementation board; begin recruitment of President and senior staff.

3. Months 12–18: Shadow operations and pilots for rules and Capacity Defender scheme.

4. Months 18–24: Full activation and transfer of cases to CAT.

5. Year 3 onward: Monitoring, rule refinement, public reporting, and formal review after 3 years.

Measurable success criteria (KPIs)

· Time to first hearing (urgent liberty cases: ≤48 hrs; serious medical: ≤28 days).

· Proportion of P represented by Capacity Defender (target 100% where deprivation of liberty or serious treatment at issue).

· Appeal/JR rate reduced year-on-year (target: 20% reduction in 3 years).

· Use of closed hearings reduced and subject to independent review.

· Stakeholder satisfaction (families, professionals, P) measured annually.

Risks and mitigation

· Risk: Initial costs and recruitment difficulties. Mitigation: Phased roll-out; reuse of existing CoP staff; central funding guarantee.

· Risk: Resistance from existing institutions (courts, local authorities). Mitigation: Stakeholder engagement, transitional protocols, shared training.

· Risk: Potential for procedural complexity delaying cases. Mitigation: Proportio

Recommended next steps (policy actions)

1. Convene a cross-departmental working group (Ministry of Justice, Department of Health & Social Care, NHS England) and an independent expert panel (judicial, clinical, civil society).

2. Commission a full costed business case and impact assessment.

3. Draft primary legislation and open a public consultation with targeted focus groups (families, mental capacity NGOs, and disability rights organisations).

4. Pilot the Capacity Defender model and the complex panel approach in two regions within 12 months.

Appendix — Suggested statutory outline clauses (short form)

1. Establishment — “There shall be a Capacity & Autonomy Tribunal (the CAT). The CAT has jurisdiction over matters under the Mental Capacity Act relating to capacity determinations, best-interest orders, deprivation of liberty authorisations, and deputy/guardian appointments…”

2. Panel composition — “The CAT shall hear matters in panels constituted as prescribed: standard and complex panels as set by regulations; complex panels require a legally qualified chair designated by the President.”

3. Representation — “Where the person lacks capacity and the matter involves deprivation of liberty or life-sustaining treatment, the Tribunal shall appoint a Capacity Defender at public expense.”

4. Open justice — “Hearings are presumptively open. Closed material only on strict necessity test and upon reasons published to the extent consistent with privacy.”

5. Appeals — “Appeal to the Appeal Chamber on points of law or significant procedural unfairness. Emergency appeal timetabling for liberty matters.”

Closing note

This comparative proposal aims to preserve the fundamental protective purposes of the existing regime while repairing its defects: restoring adversarial safeguards, guaranteeing equality of arms, ensuring technical and ethical expertise on decision-making panels, and making the system more transparent and rights-compliant. The Capacity & Autonomy Tribunal is a pragmatic hybrid model — tribunal-style speed and expertise combined with judicial safeguards — designed to offer better outcomes for vulnerable adults, families, and public bodies alike.