Applications Relating to Medical Treatment: Guidance Authorised by Justice Hayden, Vice President of the Court of Protection [2020] EWCOP 2 

This article originally appeared in Issue 5 (May 2020).

On 17 January 2020 the Vice President of the Court of Protection authorised the promulgation of guidance about when those involved in serious decisions about medical treatment should consider making an application to that court. 

As practitioners in the field of clinical negligence will know, providing medical treatment without properly informed consent is a serious issue, and a major source of litigation in recent years. The issues become particularly acute, however, where a patient lacks the capacity to consent, and the medical treatment proposed involves consequences such as a major infringement of one’s human rights, or the risk of serious harm or death. 

Section 5 of the Mental Capacity Act 2005 (“MCA 2005”) provides some protection for medical practitioners in these difficult circumstances, by providing a defence from liability where reasonable steps have been taken to establish whether or not the patient has capacity, and where, having taken those steps, it is reasonably believed that the patient does lack capacity and that proposed treatment is in their best interests (although this protection does not exclude liability for loss and damage arising from negligence in the actual provision of the treatment). 

The purpose of the guidance on Applications relating to medical treatment (“the Guidance”) is to assist clinicians and practitioners in understanding where a defence under section 5 will not or may not be available, so that, as an alternative means of acquiring legal protection, an application to the Court of Protection should be made. 

As a starting point, the Guidance confirms that if the provisions of the MCA 2005 and its Code of Practice are followed, then if there is agreement as to the decision-making capacity and best interests of the patient in question, the proposed course of medical treatment (including e.g. withdrawal of treatment) can be pursued without an application to the Court of Protection, in reliance on the section 5 defence. 

However, the Guidance also highlights the types of situation where an application is necessary or advisable. 

An application is recommended in situations where, at the end of the medical decision-making process (carried out in accordance with the relevant procedures, guidance and Code of Practice), any of the following circumstances arise: 

  1. It is felt that the merits of the best way forward are finely balanced; 
  2. There is a difference in medical opinion; 
  3. There is disagreement over the way forward amongst those with an interest in the patient’s welfare (e.g. a disagreement between clinicians and family members); or 
  4. There is a potential conflict of interest in those involved in the decision-making process. 

The Guidance explains that in such circumstances, it is “highly probable” that an application to the Court of Protection is appropriate. However, where any of those circumstances arise and in addition the decision relates to life-sustaining treatment (including the provision of nutrition and hydration), an application must be made (in order to be compliant with Article 2 of the European Convention on Human Rights (“ECHR”)). 

Where the case is not about life-sustaining treatment but involves some other serious interference with the patient’s human rights under the ECHR, it is “highly probable” that an application is appropriate, even where everyone concerned is in agreement as to the best way forward. The Guidance provides examples of treatment which entails this kind of interference, such as sterilisation, organ donation, or where the treatment is experimental or controversial. 

Finally, the Guidance suggests that an application may be required if the proposed treatment entails the application of some force or restraint, which may go beyond the parameters set out in sections 5 and 6 of the MCA 2005. It also goes on to set out some practical and procedural points relating to the mechanics of urgent applications and the involvement of the Official Solicitor. 

It is important to note that the procedure for bringing applications to the Court of Protection is currently being reviewed within the revised MCA Code of Practice, which will soon be subjected to public consultation and parliamentary scrutiny – the Guidance will therefore only apply until superseded by the revised Code.