Practice Guidance (Court of Protection: Serious Medical Treatment)  EWCOP 2
Serious medical treatment guidance "This practice guidance sets out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the Court of Protection. The procedure is currently being reviewed within the revised MCA Code. That will, in due course, be subject to public consultation and Parliamentary scrutiny. This guidance is intended to operate until such time as it is superseded by the revised Code."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
Court of Protection
Practice Guidance (Court of Protection: Serious Medical Treatment)
2020 Jan 17
Practice— Court of Protection— Serious medical treatment— When necessary to seek court authorisation for treatment— Guidance on procedure to be followed— Mental Capacity Act 2005 (c 9), ss 5, 6, 15, 16
Pending the outcome of a review within the revised Mental Capacity Act 2005 Code of Practice, which would be subject to public consultation and parliamentary scrutiny, interim practice guidance was given setting out the procedure to be followed where a decision relating to medical treatment arose in respect of an incapacitated person (“P”) and where thought required to be given to bringing an application before the Court of Protection. The guidance was intended to operate until such time as it was superseded by the revised Code of Practice and was directed to those acting for providers and commissioners of clinical and caring services responsible for bringing any application that was required who should approach the Court of Protection in any case in which they assessed it as right to do so.
HAYDEN J said that the starting point for the making of medical treatment decisions in relation to those lacking decision-making capacity was section 5 of the Mental Capacity Act 2005 which provided a defence against liability for the medical professional(s) carrying out the relevant act (including, where relevant, withholding or withdrawing treatment) where they reasonably believed that the person in question lacked the necessary decision-making capacity and that the act in question was in the person’s best interests. The fact that certain medical treatments were defined as “serious” for the purposes of section 37 of the 2005 Act did not determine whether they should be subject to an application to the Court of Protection but indicated the 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. If the provisions of the 2005 Act and relevant guidance in the Code of Practice were followed then, if there was agreement at the end of the decision-making process as to: (a) the decision-making capacity of and (b) the best interests of the person in question, in principle medical treatment might be provided to, withdrawn from or withheld in accordance with the agreement, without application to the court in reliance upon the defence in section 5. If section 5 did not provide a defence, then an application to the Court of Protection would be required.
If, at the conclusion of the medical decision-making process, there remained concerns that the way forward in any case was, inter alia: (a) finely balanced, or (b) there was 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 was a potential conflict of interest on the part of those involved in the decision-making process then it was highly probable that an application to the Court of Protection was appropriate. An application to the Court of Protection had to be made where the decision related to the provision of life-sustaining treatment. Further, in a case involving serious interference with the person’s rights under the Convention for the Protection of Human Rights and Fundamental Freedoms or where the proposed procedure or treatment was to be carried out using a degree of force to restrain the person concerned and the restraint might go beyond the parameters set out in sections 5 and 6 of the 2005 Act amounting to a deprivation of the person’s liberty, the authority of the court would be required to make that deprivation of liberty lawful.
The interim guidance also contained sections on pre-issue steps, parties to proceedings, allocation of the case, matters to be considered at the first directions hearing, urgent hearings and whether the relief sought should be granted in the form of a declaration of lawfulness under section 15(1)(c) of the 2005 Act and/or a decision under section 16(2)(a) having regard to the statutory purpose of section 16(2)(a) as being to empower the court to make a decision on behalf of P in relation to a matter in respect of which P lacked capacity.
Jeanette Burn, Barrister