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New guidance for the Court of Protection

Court of Protection guidance for decisions relating to medical treatment.

The Vice President of the Court of Protection, the Honourable Mr Justice Hayden, has issued guidance to help providers and commissioners of clinical and caring services decide whether to bring an application to the Court of Protection in cases where a decision relates to medical treatment.

The procedure is currently being reviewed within the revised Code of Practice for the Mental Capacity Act which will be subject to public consultation and Parliamentary scrutiny. This guidance is only valid until the revised Code is published for which we don't have any timescales.

The guidance sets out situations where consideration should be given to bringing an application to court. Having concluded the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person's welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

(not an exhaustive list)

Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.

If the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must always be made. This includes the withdrawal or withholding of clinically assisted nutrition and hydration.

If the case involves the serious interference with the person's rights under the ECHR, it is "highly probable" that an application should be made to the Court of Protection. This will be even where there is agreement between all those with an interest in the person's welfare. Examples of cases could include:

  • where a medical procedure or treatment is for the primary purpose of sterilisation;
  • 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;
  • a procedure for the covert insertion of a contraceptive device or other means of contraception;
  • where it is proposed that an experimental or innovative treatment is to be carried out;
  • a case involving a significant ethical question in an untested or controversial area of medicine.

If force or restraint is required an application to court may also be required. If the force or restraint amounts to a deprivation of liberty then the authority of the court will be required to make this deprivation of liberty lawful.

Mind's comment

Mind welcomes the clarity that this guidance provides not just for providers and commissioners of clinical and caring services but also for the families and carers trying to navigate the system.

Mind responded to the call for evidence relating to the MCA Code last year and we await the public consultation.

In addition to this guidance about when to make an application to court, we would like to see guidance on serious medical treatment in situations which don't meet the criteria for court applications which isn't addressed in the current Code.

The guidance can be found by clicking the link here.

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