Justifying and practising effective participation in the court of protection: an empirical study

Under the Mental Capacity Act 2005 in England and Wales (MCA), the participation of persons in making decisions that affect their lives is embedded within the legislation and has also been addressed directly in Court of Protection (CoP) rules and guidelines. Nonetheless, various studies and reports have indicated a potential gap between practice on the ground and the participatory aspirations of the MCA. This article presents an analysis of semi‐structured interviews with 56 legal professionals (lawyers and retired judges) specializing in mental capacity law to examine how they envisage the substantive meaning and function of the effective participation of individuals who are found to lack decision‐making capacity (P). The study reveals deeper legal and ethical justifications behind why P's participation matters and also suggests that interpersonal barriers, relating to communicating and engaging with P, can hinder its realization in practice