Key Facts
- •P, an adult with acquired brain injury sustained in 2017, lacks capacity to manage his affairs and litigate a personal injury claim.
- •P's parents are contesting the Official Solicitor's representation and decisions regarding the claim.
- •There are ongoing disputes about P's capacity, the handling of his personal injury claim, and disclosure of information to his parents.
- •The Official Solicitor applied to withhold closed material from P's parents to protect P's welfare and ensure a fair capacity assessment.
Legal Principles
Principles of the Mental Capacity Act 2005 (MCA 2005), including best interests, participation, and considering wishes and feelings.
MCA 2005, sections 1, 4, 15, 16, 48
Court of Protection Rules 2017 overriding objective of dealing with cases justly and at proportionate cost.
Court of Protection Rules 2017, Rule 1.1
Court's power to exclude persons from hearings or withhold material where good reason exists (Rules 4.1(3)(b), 4.3(1)(c), 4.4(1)(a), 5.11, 6.10).
Court of Protection Rules 2017, Rules 4.1(3)(b), 4.3(1)(c), 4.4(1)(a), 5.11, 6.10
Guidance on Closed Hearings and Closed Material [2023] EWCOP 6, emphasizing the principle of open justice and outlining criteria for withholding material.
[2023] EWCOP 6
Jurisdiction of the Court of Protection and the distinction between personal injury proceedings and Court of Protection proceedings (Re SK [2012] EWHC 1990).
Re SK [2012] EWHC 1990
Article 6 ECHR right to a fair and public hearing and Article 8 ECHR right to respect for private and family life.
ECHR Articles 6 and 8
Outcomes
Interim declaration that P lacks capacity to litigate, share information, determine contact, choose residence, and decide on care and treatment.
Evidence supports the belief that P lacks capacity due to his brain injury, fulfilling the preconditions of s.48 MCA 2005.
Rejection of P's parents' application to dismiss the Court of Protection proceedings.
Court of Protection proceedings are necessary to address safeguarding concerns and welfare issues distinct from the compensation-focused personal injury claim.
Order to withhold specified closed material from P's parents until the independent capacity assessment is served.
Withholding is strictly necessary to protect P from potential harm and ensure a fair capacity assessment, balancing P's Article 8 rights with P's parents' Article 6 rights.
Social worker's statement admitted; other applications by P's parents dismissed.
Procedural irregularities, lack of prejudice, and lack of basis for the applications led to their dismissal.