Guidance issued from the Court of Protection on applications relating to serious medical treatment

The Honourable Mr Justice Hayden, Vice President of the Court of Protection, has issued updated guidance on applications relating to serious medical treatment.

The Mental Capacity Act 2005 (MCA) Code of Practice is currently being reviewed and was subject to a consultation which concluded on 7 March 2019. MJ Hayden has now issued guidance to apply in the interim period until the updated Code of Practice is implemented. The guidance is directed at those acting for providers and commissioners of clinical and caring services, which will include NHS Trusts, care homes and private hospitals. Read in conjunction with the current Code of Practice, it provides clarity as to when consideration should be given for bringing an application to court, as well as practical procedural steps.

When to consider an application to the Court of Protection

If it is established the patient lacks capacity a decision making process must be followed, ensuring compliance with the provisions of the MCA, current accompanying Code of Practice and any relevant professional guidance.

The mere fact certain proposed medical treatments are defined as ‘serious’ does not automatically mean an application is necessary. Moreover, the MCA still provides a defence for medical professionals who carry out treatment they believe to be in a patient’s best interest where the patient does not have capacity. 

Medical treatment may be provided, withdrawn or withheld without application to court if there is a consensus as to the decision making capacity and best interests of the patient. This follows the decision in Re Y [2018] UKSC 46 in which the Supreme Court unanimously clarified it is not mandatory to make an application to court in such situations, provided the provisions of the MCA are followed and the relevant guidance observed.

However, the guidance follows the caveat set out in Re Y. It states that it is highly probable an application to the Court of Protection will be appropriate and must be considered, if the case is:

  • Finely balanced
  • There is a difference of medical opinion
  • There is a lack of agreement as to the proposed course of action or a potential conflict of interest.

The guidance emphasises where this is the case and the proposed treatment in question relates to life-sustaining treatment (including the withdrawal of clinically assisted nutrition and hydration), an application must be made in order to protect the patient’s inalienable rights guaranteed by the European Convention on Human Rights.

The guidance also sets out two scenarios which do not concern the provision of life sustaining treatment, but where an application to the Court of Protection is appropriate, even in circumstances where there is an agreement among interested persons.

Serious intervention with the patients’ convention rights

Examples include, but are not limited to, where the proposed treatment involves sterilisation, contraception, donation of an organ/tissue, experimental or innovative treatment or where the treatment poses a significant ethical question in an untested or controversial area of medicine.

Proposed procedure/treatment that requires a degree of force to restrain the person concerned

In situations where implementation of the proposed treatment requires using “a degree of force to restrain the person concerned” which “will amount to a deprivation of the person’s liberty” - the authority of the Court of Protection will be required to render the deprivation of liberty lawful.

Practical guidance 

As well as clarity as to when applications should be made, the guidance also sets out practical points, the majority of which are currently established best practice. The guidance highlights the importance of trying to resolve the issue without an application to court, provided time allows, as well as keeping the patient’s family involved and updated.

The Official Solicitor should be contacted with as much notice as possible. However, it is emphasised that the Official Solicitor does not provide an out of hours service and, as such, urgent out of hours applications should be regarded as exceptional.

Urgent applications

When an urgent hearing is required, Practice Direction 10B (of the Court of Protection Rules 2017) should be followed and (by way of a summary of the relevant part of the updated guidance) the following steps taken:

  • Arrange for family members to participate in the hearing;
  • Alert the Official Solicitor if possible;
  • Alert the Urgent Applications Judge and the Clerk of the Rules at the earliest opportunity;
  • Provide a word version of any draft order;
  • Prepare a statement in support of an application relating to life-sustaining treatment which sets out the salient details, relevant medical history and an assessment of any material concerning the patient’s quality of life;
  • File reports from any Independent Mental Capacity Advocate or advocate for the patient; and
  • Arrange for one or more treating clinicians to attend the hearing to provide oral evidence.

Only in exceptional circumstances will the court grant substantive relief without the patient being represented. Where representation is not possible, interim relief may be granted to secure the patient’s interests and the case should be listed without delay with the applicant filing and serving a note of the urgent hearing on all interested parties.

The impact of the guidance

The guidance provides welcome clarity, following the Supreme Court decision in Re Y. In parts, the guidance effectively replaces the old Court of Protection Rules Practice Direction 9E, which previously set out examples of cases which should be brought to the Court of Protection.

Furthermore, the guidance emphasises the importance of careful consideration during the decision making process, in order to ensure all applications to court are justified. It appears an attempt to prevent unnecessary applications being made and provides helpful guidance to avoid incurring unnecessary costs and judicial time. We await the updated Code of Practice which will likely codify this interim guidance.

Read others items in Healthcare Brief - August 2020