This report considers the participation of P – an individual who is alleged to lack mental capacity –
in proceedings concerning his health, welfare or deprivation of liberty in the Court of Protection
(CoP) under the Mental Capacity Act 2005 (MCA). We argue that the CoP was established on a
model of ‘low participation’ that is no longer compatible with developments in international human
rights law under the European Convention on Human Rights and the UN Convention on the Rights
of Persons with Disabilities. The European Court of Human Rights has developed a threefold ‘right
to participate’ in proceedings concerning deprivation of liberty and deprivation of legal capacity,
emphasising individual dignity, and adversarial and evidential principles. Support for, and
participation in, decision making are also central elements of the MCA
