By Michael Layton, 12th June 2026
This blog draws on my experience as a specialist in neurodevelopmental psychiatry working as an expert and professional witness in Court of Protection proceedings. I have also worked closely within organizations providing care for individuals with very complex needs and am the father of two children with complex neurodevelopmental needs.
Most of the cases I’ve been instructed in have concerned those with a neurodevelopmental condition (i.e., autism, learning disability, attention deficit hyperactivity disorder (ADHD), and also specific learning difficulties, such as dyslexia and dyspraxia). They have been mostly cases where capacity is considered “borderline”, and they have focused primarily on welfare matters – residence and care, often along with contact as well as internet and social media. I am often invited to give opinions in highly complex cases, particularly in relation to sexual relations, sexually harmful behaviour, vulnerability and individuals who refuse to be assessed. I have also been involved in some case related to marriage, foreign travel and one case of indoctrination.
In this piece, my focus is on ‘iatrogenic harm’ – a concept used in medicine to refer to any injury, illness, or negative consequence caused by medical treatment, examination, or institutional practice, rather than by the underlying disease. Court of Protection proceedings can likewise cause unintended harm to the person at the centre of the case (“P”) as well as to P’s family, and to P’s wider support network (i.e. care providers and professionals in social care, education, and healthcare).
Some degree of iatrogenic harm is inevitable in medicine: medication has side effects, surgery always risks complications, and screening tests can cause pain and anxiety. Good governance is needed to prevent complacency and desensitisation to the risks (and to human error). From speaking to legal professionals, my impression is that for many reasons (e.g. stress, time and cost) they agree that one should always avoid going to court to resolve a dispute if one can. That would suggest their awareness that being engaged in legal proceedings, in itself, comes at some considerable personal cost (i.e. harm). This should come as no surprise, as civil court proceedings will often be focused on resolving a conflict.
There are two main sections to this blog post. First, I’ll describe how the experience of P, P’s family, and the network around P shapes their approach to court proceedings. Second, I’ll highlight the specific impact of court proceedings on the professionals and on the wider network around P, since these inevitably rebound on P, P’s family and their immediate network of support.
I’ll end with some final reflections.
1. Previous experiences of P and P’s family prior to proceedings
A wide range of prior experiences – often challenging or negative – can shape how both P and their family feel about and respond to involvement in Court of Protection proceedings. These include (as discussed below): 1.1 the impact on P and the family of diagnostic delays, 1.2 professional scepticism about autism and ADHD diagnoses, 1.3 parent blaming, 1.4 technological change, 1.5 (age-related) transition between services and 1.6 an arbitrary legal concept of adulthood.
1.1 Diagnostic Delays
A neurodevelopmental condition may be diagnosed prenatally, at birth, or months, years or even decades later. Diagnosis is often delayed, sometimes because the family has not identified that there was something wrong but very frequently because of system-based delays. Parents may find themselves signposted to voluntary sector services and wait months or years for diagnoses after an already delayed initial assessment.
The threshold for being assessed for mental health difficulties through Child and Adolescent Mental Health Services (CAMHS) is very high, even for children with very complex needs and high levels of risk. For children who are seen as relatively well, with no identified “risks”, the waiting list is often months (and can be years) before they can see a clinician able to make recommendations. Such children may not be identified so readily through school-based screening programmes.
CAMHS clinicians usually do not have the latitude to make diagnoses such as ADHD and autism, as it requires referral onto another waiting list or pathway. Although there are good reasons for these specialised pathways, this means further delay. The waiting list now for autism and ADHD diagnostic assessments across the country can be up to six years in some areas.
Families accessing private assessments (to try to speed up diagnosis) can find that – sometimes as a result of (often unfair) media coverage, diagnoses are dismissed as not valid or are not acted on by NHS providers simply because the patient or their family has paid for diagnosis privately. There is currently a social media campaign to raise this issue with the Equality and Human Rights Commission. Without the diagnosis, it is very difficult to access the right support and treatment.
Once people have a diagnosis, the person may find themselves refused access to “mainstream” mental health services like CMHTs. Some services may position themselves as lacking the specialist expertise to treat such patients appropriately, often citing their role as treating “severe and enduring mental illness”. Limited or lack of a ‘specialist’ provision, or a lack of adaptation within the local mainstream service will also these individuals. Relying solely on specialised services creates problems.
1.2 Professional Scepticism about Autism and ADHD diagnoses
Parents and patients often tell me they face repeated scepticism from health, education and social care professionals about their concerns, and this Is often a barrier to accessing services (including diagnosis).
Inevitably, professional scepticism is going to have a negative impact on P and P’s family. They feel dismissed, not taken seriously, and unheard. We see this with the difficulty of accessing a broad range of services which are frequently heavily gatekept. This is particularly significant to services such as CAMHS, but also in terms of more recent media coverage in relation to autism and ADHD diagnoses. These services often provide the diagnostic stamp of authenticity needed for P to access specific kinds of support or treatment.
Individuals can be seen as “seeking diagnoses” in a way which is somehow pathological. Professionals may also not recognise the positive benefits of diagnosis in terms of validation, self-understanding and access to wider support. Instead, being overfocused on not wanting to give people labels. If diagnoses are provided privately, there can be considerable scepticism about these diagnoses, even if they are provided by senior clinicians who may work within the NHS or have left the NHS months or a few years previously.
There is a sense in which the concept of some of these diagnoses is being subject to the culture war that we so commonly see in the media and political discourse. This is the case for ADHD and autism recently. Advancing psychiatric and psychological knowledge is not welcomed as progress in the way that comparable issues in the world of cancer treatment are but are often portrayed instead as a threat to society by undermining individual responsibility and by encouraging poor parenting and dependency on benefits. All this ignores the complex epidemiological evidence and the large numbers of individuals who are unable to work due to long-term mental health problems.
1.3 Parent Blaming
Parent-blaming has a long and tragic history which dates back to the concept of the “refrigerator mother” in relation to the diagnosis of autism in the 1950s. This was a classic example of reverse causality where children who were emotionally cut off because of their autism were reported to have mothers who were less emotionally responsive to their children. As a result, mothers were blamed for their emotional distance as if it caused the child’s autism, whereas, in fact, the parent had retreated into a less emotionally intrusive way of being with their child over time and in response to their child’s symptoms of autism.
There are many good psychological explanations for why parents of autistic children will show affection differently. If a child does not reciprocate affection, then repeatedly trying to engage with them in an affectionate way can be a trigger. Part of the autism diagnostic process is identifying sensitivities to social and sensory triggers such as hugs and tickles. It is very common for children with autism to either want hugs and tickles on their own terms, under very specific circumstances or to not want them at all. Similarly, their social communication difficulties can lead to problems understanding the emotional meaning of affection. This concept of refrigerator mother has now fallen out of fashion as we have better understood the sensory, social-communication and emotional elements of autism.
However, the themes of parent blaming have continued, and if you ask parents about their experiences of trying to get a child with autism or ADHD diagnosed, they will often report being or feeling blamed by professionals. Often because they are seen as having poor parenting skills or being accused of having few boundaries with their child. Many of these parents may be neurodiverse themselves as these are highly heritable conditions.
Parents will often also be dismissed if their children do not have significant behavioural problems at school (“Not Fine in School”). Well-behaved children who are pro-social and anxious will often go under the radar of an autism or ADHD diagnosis, particularly in women and girls. Parents in that situation, when they ask for help, may be seen as overprotective, over-anxious and trying to get their child unfair advantage. They may be seen as not being able to cope with parenting their child at home, while the school appears able to do an obviously much better job of it. Then, when problems develop later in adolescence, the parent may then be seen as having failed early on, and the deterioration related to their neurodevelopmental condition may instead be attributed to the pre-existing parenting problems.
In its most extreme forms, parent blaming can be seen in suspicion or actual allegations of Fabricated or Induced Illness (what used to be referred to as Munchausen by proxy). In my professional work, I have seen a number of parents (usually mothers) where I have either been aware or have suspected that some professionals have considered that the mother may have Munchausen by proxy. In fact, the mothers have had an extremely sophisticated understanding of their child’s needs but are seen as too closely involved. Their close involvement has arisen because of delays in diagnosis, professional scepticism, parent blaming, and inadequate resources. These mothers become pathologized and/or labelled as “difficult”. If they become even more “difficult” or point out symptoms other people do not immediately recognize or agree with, they can ultimately end up with the label of Munchausen by proxy. Whilst relatively rare, it is something that I have seen several times in my working life.
1.4 Technological change
The increasing recognition of neurodevelopmental difficulties has to be considered alongside the large number of societal changes that have occurred with the digitalisation of day-to-day life. Digital technology and social media have arguably led to a progressive fragmentation of society alongside increasing complexity and specialization of work. This all makes the nature of education, work and day-to-day social interactions more complex and therefore increases the challenges that neurodivergent adults and children face in day-to-day life. The complexity of the world has increased dramatically in the last 30 years. We cannot be sure that our brains, which evolved in a very different environment, can keep up.
1.5 Transitions between services
Transitions between statutory services create a range of difficulties.
The first transition can be from paediatric services to Child and Adolescent Mental Health Services (CAMHS) – sometimes mainstream CAMHS or, in some regions, a specialist CAMHS for neurodevelopmental needs or learning disability. Paediatrics tends to use (in broad terms) a medical model. Older children may be more likely to be seen in CAMHS, where the process is very different and where knowledge and experience in Autism and/or Learning Disability can vary considerably between different CAMHS services. Over the years some services have been structured to focus on depression, anxiety, eating disorders, and psychosis. That is not to say that CAMHS teams do not take autism and ADHD seriously. For many of them it will be seen as their core business, but because of the gatekeeping, there are many individuals who will not be able to access their expertise because of the high demand and because the threshold for eligibility is set so high.
Another key transition often fraught with complexity is the move from children’s into adult services. Paediatrics may well be transferring the care of a young adult with a learning disability and complex medical needs over to a range of different services where the parents had previously got all of their input from one organization. The psychiatrist may take over psychotropic medication prescribing, or it may go back to the GP. They may find that their psychiatrist may or may not look after epilepsy. There may be a neurologist involved in relation to epilepsy. There may be a rehabilitation physician involved in relation to neurodisability. Most often, the GP will take over many of these roles which were once the province of the paediatrician (but without the time or the access to specialist resources).
Individuals moving from CAMHS to adult mental health can be shocked by the difference of provision. CAMHS services may have provided very in-depth, detailed support for children with emotional and behavioural difficulties related to autism and/or learning disability or to ADHD. For P or the family, it is hard to make sense of the different criteria for adult mental health services. For example, many adult mental health services say that they do not accept the care of individuals without what they often describe as a “severe enduring mental illness”. Individuals with autism without a learning disability may find themselves moving from a service where they may have received psychological therapy alongside medication for years, to an adult service which appears to say that they have no needs. If they are lucky, they may be offered routine follow-up if they are taking medication for ADHD.
1.6 An arbitrary legal concept of adulthood
Adult services can fail individuals with a neurodevelopmental difficulty if they try to impose an artificial concept of adulthood. There is no point at which someone becomes an adult in mind and body. They simply do this in law.
Parents who have stabilized and scaffolded a child for 18 years should not suddenly change that approach if it has worked simply because the person has attained legal ‘adulthood’. Imposing a false veil of choice on someone who lacks capacity and is not well supported does nothing to promote autonomy or inclusion.
At the worst, I have seen extremely good transition processes overseen by the courts and praised greatly for their quality, fall apart because of an adult service which, in spite of this process, decided that P was an adult and should make their own decisions. This then took months to repair because of the complexity of P’s needs, and the physical health problems this triggered, alongside emotional and behavioural difficulties.
It is very easy to view parents as infantilizing their children in these settings. However, it is important to look at the trajectory of individual development People with mild or moderate learning disability may have quite a different emotional and developmental profile to most 18-year-olds, and this has to be approached sensitively, and with realistic long-term goals for maturation and skills acquisition. These goals must reflect the different trajectory of change for the neurodivergent person. This does not mean they should be treated like children – but it also means that they should not automatically be seen as somehow lesser because they do not conform to what we think of as adulthood. Nor should their presentation be considered to be simply a product of over-involved or controlling parenting.
Many, if not most, of these individuals are in families who have faced repeated difficulties accessing the right kind of support and help and continue often to do so. To then critique the parent who has kept that child well, happy and in a loving setting, and to pathologize that, is akin to parent-blaming of the “refrigerator mother”. It is imperative to reflect on how much P is reliant on others for care and how little support may have been provided in the past. Statutory services cannot suddenly transplant P into an adult world and expect them to be a different person because you tell them and their carers that P is an adult now.
There is no definition of what an adult should be psychologically, sociologically, or psychiatrically. An adult is a legal concept. It is simply someone who is 18. There are all kinds of different adults, and there are many adults who are dependent on their parents and are not pathologized for this because they do not come in contact with statutory services.
The individuals that we work with in the world of neurodevelopment have very good reasons to be dependent on their parents and that in itself should not be pathologized. It should be understood, and the need for dependence should be reduced where this is in P’s best interests, rather than as an age-related expectation. The vast majority of parents would love their child to be more independent and would like to be able to step back from their child’s care. However, it is very difficult to do so with services that may be inadequate or have failed in the past.
The overall impact on P and P’s family
All of the issues I’ve listed above are longstanding and have been present since I first became a consultant in 2008. As providers of education, health or social care, we are familiar with the system, and it is very easy to forget how alienating and confusing it is for families. To many, this system appears to make no sense, not just in terms of continuity of care, but at a more basic level: a consistent definition of what a need is.
In one extreme case, I saw an individual who had been diagnosed with a medical condition in childhood, seen by the paediatrician, and who had managed it with the family very well. Their care had been transferred over to adult services. The diagnosis had been changed by an adult physician without having received the information from paediatric services and the parents had then been effectively accused of Fabricated or Induced Illness, and the young adult was removed into care. Eventually this was resolved but only after years of considerable distress caused to P and P’s family. This is a rare and extreme example, but it is an important indicator of the fragmentation of an increasingly overburdened system. The complexity and lack of consistency of this system does not just cause rare but serious problems like the unwarranted removal of P. On a day-to-day basis, it can cause confusion, distress, and anxiety for P and P’s family.
In adult services, professionals can be surprised at the approach taken by parents when dealing with statutory services. It takes some time to learn that the parents of a child with neurodevelopmental needs have spent sometimes their child’s entire life fighting for what on the face of it would seem to be entirely reasonable and proportionate input once the needs have been identified. The process of getting those needs identified can be so arduous that parents and P can be left with little faith and great scepticism when encountering professionals.
Many parents I meet tell me that they are seen as a “difficult parent” – and some have read documents reporting them as such. Most describe how professionals do not like being challenged by them and this is why they are seen as difficult. Some are angry or upset about this, understandably so. Others view it more as a battle scar and are more pragmatic about it. It is a common experience for everyone working in the world of autism, ADHD, and learning disability to meet parents who have had these negative experiences at the hands of education services, health services, and social services – usually not as isolated events but as a recurring thread or theme over years or decades. These anxieties generated by these experiences for P and P’s family continue on into adult life.
NHS and social care and education are under an immense amount of strain now. The inevitable gatekeeping that goes with that only serves to amplify the effects of these past experiences. It is very difficult to reassure parents or P that their services will remain consistent and reliable. One of the first thoughts many parents have on discovering their child has lifelong difficulties is, “Who will look after them when I’m gone?” This is such an important thing to remember as a professional involved in this area. We are passers-through for an individual whose life is in so many ways dependent on the good offices of others.
2. The impact of Court of Protection proceedings on P, their family, and wider network
The impact of the proceedings extends beyond P and their family (the first two issues I address below) and is also likely to affect formal carers (2.3), providers (2.4) and professionals (2.5).
2.1 Impact on P
When a person becomes a P in the Court of Protection, the longstanding experiences of that person and their family inform and inflect every part of the process.
P will often have been waiting for a particular issue to be addressed, so going into Court of Protection proceedings may be explained to P as an opportunity to express their disagreement about a particular issue. For example, this may be about restrictions placed on them or a belief that P lacks capacity when P believes they have capacity. This can be given a positive spin, but although court proceedings can be a positive opportunity for P to potentially obtain more freedom, new resources, or to be viewed as a more autonomous individual, P may feel they should have had all of those things already and may view this instead as a delayed attempt to provide something which should have been there for years, and part of a repeating process of bureaucracy and people saying no to P. That experience would not be unusual for many people who are more cognitively able and aware of proceedings.
There are many aspects of the proceedings which can affect P adversely – including assessments (e.g. see the case Re EOA [2021] EWCOP 20). In another case I had to do an indirect assessment based on 3rd party evidence because assessing P was going to cause “significant self-harm”. Concern about the harm caused by excessive assessment was also raised in the recent Supreme Court judgment on deprivation of liberty (AGNI [2026] UKSC 16, e.g. para. 102).
There are many instances where harm is less evident and so does not get identified in the proceedings or reported in published judgments. I have seen important or urgent medical treatment delayed because of the legal processes. Professional decision making is often paralysed by fear of acting unlawfully and P may become frustrated and distressed by slow proceedings with repeated delays. My personal experience is that Court of Protection proceedings are becoming increasingly protracted, particularly in complex or contested cases. Cases that would have taken months in 2015 now take at least a year. Cases that might have taken 1 year now take 2 or 3. This appears to be a function of an overburdened public sector. I understand that formal data on delays is not collected, but that judges regularly raise concerns about delay.
The stress and anxiety that family and informal carers experience about the proceedings can also affect P, as I discuss in the next section.
2.2 Impact on family and informal carers
The complex, slow, defensive and sometimes adversarial elements of the proceedings take their toll on parents. It is not hard to see how this could affect P. It is also easy for the parent to feel criticised for this, even though in almost all cases the parents’ stress should be met with compassion and understanding not criticism.
For P’s family the proceedings (however positively professionals may try to frame them) can be experienced as part of a recurring process of bureaucracy in a system which (from their perspective) tends to under-provide, criticise and dismiss. Families may expect not to be listened to, or not to be believed. The case of Steven Neary and his father Mark is probably one of the best known and most serious. However, for some, proceedings that are initially seen as the opportunity to finally be heard and to get justice, is a hope that is disappointed.
Proceedings may focus on allegations in relation to child or adult protection issues, which inevitably cause anxiety, distress, and disagreement if parents are subject to those allegations. Families may feel they are suspected of these things even if it has not been made explicit. This fear should not be dismissed as overactive imagination or paranoia. Allegations of over-involvement, enmeshment, and being seen as difficult can easily tip over into allegations of causing harm, either by disrupting the individual’s care or, in extreme circumstances, allegations of Munchausen by proxy.
For parents, there are a number of shocks to the system. One of the biggest is discovering the lack of influence they may have. They will often be concerned that their views will be set aside, with professional views being taken as paramount. Sadly, this can be the case in reality, particularly where parents are blamed or pathologised.
In my mind, this is the last possible approach one should take with a parent of a child or young adult in these situations. A careful, reflective and balanced approach is needed. Parents are almost invariably dedicated to their children, often know them extremely well and better than most of the professionals involved. Where there may not be agreement on everything, their views must be given considerable weight, especially where parents have been caring for their child at home.
Particular consideration needs to be given to the level of support that P has been given by their parents, and that suddenly changing that support may be dramatically destabilizing. It should not be assumed that the closeness of the relationship is pathological. There should not be a rush to turn P into ill-defined version of an ‘adult’.
The complexity of the Court of Protection proceedings is also very challenging for family. I frequently provide training around capacity assessments to health, social care education and legal professionals, both formally and informally. It is very clear a significant number of professionals have very little experience and confidence in doing assessments, often relying on others or completing them quickly without practical training. Most training on Capacity Assessment for professionals seems to come from one-off events and online training, rather than being embedded in ongoing professional development in the way, for example, a doctor’s training in prescribing is supervised and structured. So, these are proceedings where legal procedures and the core concepts of capacity are very difficult to understand, even for experienced professionals. P and P’s family are entering this legal realm expecting that professionals will disagree with – and possibly criticise – them in a way which feels deeply personal. We are asking a lot of parents to become parties in these cases or to contribute to them. They may not be supported adequately for these processes, especially if they are without legal representation due to lack of sufficient funds or legal aid eligibility (which is a common and invidious position).
Alongside the complexity of proceedings there often are the delays in the processes. Obtaining an up-to-date DoLS assessment is often a very slow process, with a well-documented national backlog. In my experience, delays in Court of Protection cases seem to be increasing as the workload and complexity of case law increases. The gaps between onset of case hearings and resolution seem to be getting longer, and it is increasingly difficult to get actions taken. All this has a definite impact in clinical work, as clinicians can struggle to know what decisions they can and cannot make without some sort of legal process.
For both P and P’s family, court proceedings, far from being a liberating experience that addresses human rights issues and access to resources, can often be a process of re-traumatisation. They may be forced to go over events that happened years ago, which may have been painful or distressing. The process can feel combative and critical, with P framed as lacking capacity, and often as risky or at risk, and the family portrayed as having failed their child in various ways.
There are recurring themes in these distressing interactions with services. Whilst this is not within the definition of trauma in the sense of PTSD, from the point of view of P and P’s family they will often experience distressing and intrusive thoughts about these proceedings most of the time.
There is an interesting parallel with the literature on litigation for personal injury, where the mental health of individuals going through a personal injury claim is often made worse by the process of litigation, and the cessation of proceedings can ameliorate some of the psychiatric distress. It does not seem unreasonable to suppose that litigation in the Court of Protection could be similarly intrusive for the parties.
In sum, parents involved in Court of Protection proceedings can feel that they are going into an unfamiliar, complex, and often distressing and traumatizing process that is subject to repeated delays. All this whilst interacting with and relying on the overloaded and underfunded services they are going to court with. It should not be a surprise if it becomes an all-consuming element of their life.
2.3 Impact on carers
Formal (paid) carers frequently have limited understanding and experience of the Court of Protection. This can leave them with anxiety and fear about making mistakes and with concerns that their work is being constantly scrutinized.
If the case is related to restrictive practice or restrictions on P, they may feel unfairly criticized by P, P’s family, professionals, or P’s advocate or litigation friend. The more anxious individuals are about making mistakes, the more mistakes they tend to make, once anxiety goes above a certain level. None of this is liable to improve P’s quality of care
Significant errors can be made because carers may think that things are being dealt with by the Court of Protection. It can happen that they think they do not need to act or cannot act because the matter is being addressed in court. I have seen a safeguarding referral not being made because the matter was thought to be dealt with by the court. I have seen medical treatment decisions delayed because of concerns that treatment cannot be given without the approval of the court. This can lead to safeguarding referrals not being made and medical issues not being addressed.
Carers and care home managers (and their teams) are generally anxious about getting involved in Court of Protection proceedings even at a distance (i.e. their notes, reports and opinions being scrutinised so intensely). There is usually very little in their training or experience to properly prepare them for this. As for giving oral evidence in court, this is extremely intimidating. Regardless of their level of competence in providing care, there is a gross “inequality of arms” for family members giving written or oral evidence compared with evidence from professionals
2.4 Impact on providers
Like carers, providers may feel criticized for the quality of care they are providing. They may receive short notice requests for large volumes of information, which must go through appropriate data collection processes within the organization’s policies. This can put great burdens on care providers, especially smaller ones with limited resources and no experience of Court of Protection proceedings.
Providers may be placed in an impossible position of having to give notice to someone if they are found to have capacity to make certain welfare decisions that may affect their ability to provide P with care. Some providers cannot sustain a service for someone who is a risk to the public if not supervised. Stress from proceedings or changes in supervision may lead to behaviour that causes distress to staff and other residents, making the service unsustainable.
These are inevitable dilemmas in some areas of capacity, and these are important to factor into a case early on, as proceedings may put P’s placement at risk.
2.5 Impact on professionals
Professionals tend to have an inherent fear of the legal system, worrying about being sued for professional failings or facing regulatory interventions from bodies like the HCPC, GMC, NMC, or similar.
With regard to Court of Protection proceedings, professionals in education, health, social care, and law, as well as the legal profession, are all working in areas that are essentially publicly funded and subject to stretched resources, with the constant need to do more with less. Individuals are working within systems where gatekeeping and overstretched resources cause delays and slow down the provision of core services.
Obtaining psychiatric reports or capacity assessments from a health provider or ICB can be extremely difficult due to shortages in staff and high levels of demand. Providing up-to-date social work evidence with a detailed chronology is also difficult, especially if the social work team is understaffed or relies heavily on locums.
In the legal system, funding for legally aided work has been progressively reduced over the last 30 years, leading to more cases being dealt with by fewer legal professionals and paralegals with large caseloads, causing delays in addressing key issues.
All these professions tend to be overstretched and so put professionals at a high risk of burnout, which can contribute to a range of problems in day-to-day work. Burnout can make individuals more reluctant to think flexibly: they may become more task-focused than person focused, and less able to reflect on alternative hypotheses about P’s needs and support.
There is also talk of moral injury among individuals working in what are sometimes referred to as failing systems, particularly in doctors working in the NHS who see patients receiving suboptimal care. This can cause individuals to become numbed and detached, leading to professionals appearing uncaring when they are trying to cope with an overwhelming workload.
All of this makes it very difficult for any professional providing support or treatment to P to feel comfortable going into court to provide a statement of their opinion, knowing it will be challenged. They may fear such a challenge will cast serious doubt over their previous professionalism and provision of care or treatment. This can also make individuals more rigid and less likely to agree to compromise or consider alternative hypotheses, and more averse to taking risks.
Many contested cases in the Court of Protection involve serious risks to the individual or others, and there are significant anxieties about what would happen if P is found to have capacity. Professionals in those situations feel ill at ease and fear criticism if they find (or agree with a finding) that P has capacity and then P subsequently harms themselves or someone else. This is an area where I am frequently instructed. It involves a range of “borderline” capacity issues. By borderline I mean cases where it appears plausible that P may have capacity or could be supported to develop capacity. For example:
- Contact: Where P is vulnerable to exploitation and there are concerns about capacity for contact. This may be related to contact with family, a sexual partner or stranger / “mate crime”. This may overlap with internet and social media use.
- Sexual relations: often linked to vulnerability and contact. This may overlap with internet and social media use.
- Sexual offending / sexually harmful behaviour – often linked to sexual relations and risk to others. This may overlap with internet and social media use.
- Self-harm and suicide – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
- Non-sexual violence to others – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
- Self-neglect / refusal of care – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
Going to court can be a helpful way of reassuring professionals that they have done, are doing or want to do the right thing. However, often people are not going to court with that intention, but rather because there is a contest over capacity and/or strong disagreements about what should be done in P’s best interests. Even when capacity issues are resolved, professionals may feel compromised by ’best interests’ decisions which “go against the professional grain”. For example, allowing contact with an abusive individual, allowing someone to remain in their own home when they are at significant risk, or allowing an individual to continue to drink alcohol despite evident harm.
Professionals are particularly concerned because there the names of expert witnesses are almost always published and sometimes their evidence criticized or rejected. The professional culture in law is different from those found in health and social care. In litigation, there is conflict, and this conflict is formalised into a legal process. Legal professionals are not simply judged by whether they win or lose a case, but by how well they conduct that case. In health, education and social care, decisions are usually reached by consensus (sooner or later) and without very detailed and very public scrutiny. The professional fear of criticism by a judge who is not part of their profession in a court setting does nothing to encourage independent experts (or other professionals) to work within the Court of Protection framework.
Overall, I raise these issues not to dismiss, undermine, or insult the legal system or legal professionals. My experience of working in the Court of Protection has been very positive. I firmly believe that virtually all the practitioners I have met in this field, whether legal, judicial, health, education, or social care professionals, practice with the best intentions and genuine belief that they are doing the right things for the right reasons. Inevitably, there will always be some individuals who may not be up to standard, but that is not my general experience.
One of the reasons I continue to work in the Court of Protection field is because of the broadly collaborative and constructive attitudes of many of the legal professionals I deal with, and the generally collegiate atmosphere amongst them. Nonetheless, just as doctors, social workers, educationalists, nurses, and psychologists have to reflect on their practice, we have to consider the parallel of iatrogenic harm in legal processes and how that applies to different groups of individuals.
In terms of the Court of Protection, the group of individuals who have neurodevelopmental conditions (along with their parents and family) have often experienced a series of repeated, difficult interactions with services. They may feel stigmatised. All of this can have had a longstanding corrosive effect on their faith in services, and their resilience to engage with both the courts and the statutory services.
Final reflections
P and P’s family exist within a complex network of interacting systems which are overstretched, lack continuity and consistency, and may be fragmented. The professionals within these systems are at risk of burnout and even moral injury. All of this can amplify the negative experiences and expectations of P and P’s family.
In a system focused on addressing P’s best interests, we must reflect on how this system may also unintentionally harm those interests, despite the fact that all the individual elements may be trying to do their very best.
Michael Layton is a Consultant Psychiatrist in independent practice specialising complex neurodevelopmental and neuropsychiatric conditions. He has provided over 140 reports as an expert, for criminal proceedings, the Court of Protection, the Family Court, personal injury cases and second opinions. He is a member of CoPPA (Court of Protection Practitioners Association) and recently became a member of the COPPA Cymru Committee.
Promoting Open Justice in the Court of Protection 