CELLS Seminar: Dr Jaime Lindsey, ‘Reimagining the Court of Protection: Participation, Mediation and Best Interests Disputes’.

Reimagining the Court of Protection: Participation, Mediation and Best Interests Disputes

Drawing on work in my book, Reimagining the Court of Protection: Access to Justice in Mental Capacity Law and an ESRC funded project ‘Mediation of Medical Treatment Disputes: A Therapeutic Justice Model’, this paper analyses the use of mediation as a dispute resolution mechanism to resolve health and care disputes, an area which has been fraught with high-profile conflict in recent years. The aim of this book was to reimagine the Court of Protection (CoP) as a court which facilitates the subject of proceedings to participate and give voice in proceedings; be heard on an equal evidential footing; and to have the opportunity to shape the material and institutional practices of the court. One aspect of this reimagining was to consider the role of mediation as a form of non-judicial resolution of CoP disputes, particularly disputes over best interests.

Drawing on empirical data, case law and theoretical insights, I argue that there is some evidence emerging that mediation may be able to provide improved opportunities for supporting families and healthcare professionals through these difficult cases, particularly given the increased process and outcome flexibility, understanding, collaboration and improved participation it can provide. However, mediation also poses several challenges, including the limited evidence supporting a participatory approach for the person at the heart of the dispute, that mediation is difficult to use in cases where there are entrenched positions, and that it may not have sufficient safeguards built in to protect the patient's best interests.

Dr Jaime Lindsey is an Associate Professor in Law at the University of Reading. Her research interests include healthcare law, mental capacity and adult safeguarding law, access to justice and dispute resolution. Jaime is a non-practising solicitor and an Academic Fellow of the Middle Temple. She is currently an ESRC New Investigator award holder (2022-2025) for her project on ‘Mediation of Medical Treatment Disputes: A Therapeutic Justice Model’ and recently published her first book, Reimagining the Court of Protection: Access to Justice in Mental Capacity Law, which was awarded the Hart SLSA early career book prize 2023 and was shortlisted for the SLS Peter Birks prize for outstanding legal scholarship 2023.

Panelists/Speakers

Dr Jaime Lindsey, female. j.lindsey@reading.ac.uk