Practice guidance has been issued by Mr Justice Hayden, Vice President of the Court of Protection, on the procedure where a decision arises relating to medical treatment and when to bring an application before the Court of Protection. This guidance is to be followed until it is superseded by the revised Mental Capacity Act Code which is currently being reviewed.

No application needed to the Court of Protection

When making a medical treatment decision in relation to those lacking decision making capacity, medical professionals need to refer to Section 5 Mental Capacity Act 2005 (MCA 2005). This allows them to carry out a relevant act where they reasonably believe that the person in question lacks the necessary decision-making capacity and that the act in question is in the person’s best interests. A relevant act may include withholding or withdrawing treatment.

Defining certain medical treatments as “serious” indicates a need for special care and attention to the decision-making process surrounding them including the appointment of an Independent Mental Capacity Advocate in appropriate circumstances. The seriousness of treatment is not by itself determinative when considering an application to the Court of Protection.

If the provisions of the MCA 2005, relevant professional guidance and guidance in the Code of Practice are followed; and, if those in the decision making process are in agreement as to the decision making capacity of the individual in question and what is in their best interests, then medical treatment may be provided, withdrawn or withheld without application to the court.

When consideration should be given to bringing an application to the Court of Protection

It is important to consider whether any relevant issues can be resolved without the need for proceedings. However it should be borne in mind that delay may be harmful to the person’s welfare and if resolution cannot be achieved proceedings should be issued.

Consideration must always be given to whether an application to the Court of Protection is required if:-

  1. The medical decision is finely balanced, or
  2. There is a difference of medical opinion, or
  3. There is a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or
  4. There is a potential conflict of interest in the part of those involved in the decision making process.

It is highly probable that an application to the Court of Protection is appropriate if any of the concerns in the list above exist. Note this list is not exhaustive.

When an application must be made to the Court of Protection

An application to the Court of Protection must be made if any of the situations in the list above arise and the decision relates to the provision of life sustaining treatment including the withdrawal or withholding of clinically assisted nutrition and hydration. 

The guidance says that if the treatment is to be carried out using a degree of force to restrain the person which goes beyond sections 5 and 6 MCA 2005 resulting in a deprivation of liberty then an application to the Court will be required. However the guidance is silent on whether either a standard authorisation or the Mental Health Act can be used to deprive a patient of their liberty in cases where they might appear to apply.

When it is highly probable that an application to the Court of Protection should be made

If the treatment is not about the provision of life sustaining treatment but involves serious interference with the person’s rights under the ECHR, it is highly probable that it should be appropriate to apply to the Court, so that it may facilitate a comprehensive analysis of capacity and best interests with the individual having the benefit of legal representation and independent expert advice. This will be so even where there is agreement between all those with an interest in the person’s welfare. The sort of cases that involve serious interference are (but not limited to):-

  1. Where a medical procedure or treatment is for the primary purpose of sterilisation;
  2. Where a medical procedure is proposed to be performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cells, tissue or bodily fluid to another person;  
  3. A procedure for the covert insertion of a contraceptive device or other means of contraception;
  4. Where it is proposed that an experimental or innovative treatment to be carried out;
  5. A case involving a significant ethical question in an untested or controversial area of medicine.

Bringing an application to the Court of Protection

Those providing or commissioning clinical and caring services should approach the Court of Protection in any case in which they assess it as right to do so.

It is normally the case that in cases involving medical treatment the organisation responsible for commissioning or providing clinical or caring services to the person will be the applicant. The person would normally be joined as a party and the Official Solicitor will usually consent to act if invited to do so by the Court of Protection.

The Court of Protection will consider whether anyone not already a party should be joined as a party to the proceedings. It will also consider how the press should be notified of the application, and whether such notification should be accompanied by an agreed statement of facts and issues. The Court of Protection will have particular regard to:-

  1. The seriousness of the consequences of the proposed treatment decision(s);
  2. The seriousness of the interference with the ECHR rights of the person.

Urgent applications

If an urgent hearing is necessary, arrangements should be taken to enable family members to be able to fully participate in the hearing. The Official Solicitor’s office should be alerted to the application so that they are able to respond promptly. The Urgent Applications Judge and the Clerk of the Rules should be alerted at the earliest opportunity when an application appears likely.

The application should be accompanied with: draft court orders; any statements in support setting out relevant medical detail; any IMCA or advocate reports relating to the treatment decision; and in some circumstances treating clinician(s) may be required to give live evidence for the Court.

In an urgent hearing, the Court will take every opportunity it can to ensure that the person is represented before granting substantive relief. Only in a truly exceptional case would the Court grant substantive relief without representation. The Court will otherwise only grant such interim relief as is urgently required to secure the person’s interests.

Further Guidance?

We are expecting the Court to issue further guidance soon on when applications can be made to the Court of Protection and/or Inherent Jurisdiction of the High Court to authorise care plans based on the high likelihood that a patient who presently has capacity will lose it during the course of providing care. There have been a small number of recent cases where the Court of Protection has issued contingent declarations of best interests, particularly in obstetric cases, where necessary deprivations of liberty have also been anticipated. However, the use of such powers is likely to be limited to truly exceptional cases and late planning will not be tolerated.

How can we help?

Cases that involve serious medical treatment for a person who lacks capacity are sensitive matters. It is crucial that providers and commissioners of clinical and caring services receive the right, informed legal advice.

We have extensive experience in this area and are on hand, around the clock, to provide urgent legal advice ranging from screening as to whether an application to Court is necessary, preparing witnesses and evidence and providing legal representation at any hearings.

Stuart Marchant, Claire Bentley and George Riach

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