A common concern for ensuring just participation
Published 17/08/2018
Research suggests that those subject to proceedings under the Mental Capacity Act 2005 often fail to give witness testimony and may even be absent from their trial. This creates problems that are comparable to those arising for LiPs.
Research by Dr Jaime Lindsey suggests that in disputes under the Mental Capacity Act 2005 (MCA) there is a worrying absence of those subject to the proceedings (who are known as P). Either P was absent altogether or there was no evidence of P having testified. These absences are worrying in themselves because, as Dr Lindsey emphasises, testimonial justice is not being done and benefits of participation are not being realised. However, it may be even more concerning that these absences are occurring against the background of an increasing numbers of LiPs.
For, it is not just the case that testimonial justice is impacted by complete absence or a failure to testify. Rather, if the ability of LiPs to represent themselves is not adequately facilitated, then they will struggle through the legal process and, especially, inexperienced questioners and inadmissible questions will seriously hamper the examination of witnesses. There is a real concern for realising justice in such circumstances as well.
Another parallel involves adequate support for persons with mental health issues. Dr Lindsey notes that in relation to the MCA there is a pervasive assumption that P was too vulnerable to go to court and, relatedly, lacked credibility as a witness. This involves a problematic rejection of the value of these persons as givers of knowledge. Similarly, if suitable systems are not in place to support LiPs with mental health issues, then their participation may be unnecessarily problematic, creating the danger of comparable assumptions arising.
For Network members, some tips on working with distressed litigants in person can be found here.
