The Mental Capacity Act 2005 is under review and the amended Act is not expected to come into force until 1 October 2020. However, to fill the gap until the amended Act and new Code of Practice are in force, guidance has been issued by Mr Justice Hayden, Vice President of the Court of Protection, setting out when an application should or should not be made to the Court of Protection when a decision is needed relating to serious medical treatment of patients who lack mental capacity in this respect.
In our experience in dealing with Court of Protection proceedings, the Court is increasingly frustrated with disputes between the interested parties delaying and protracting the process and failure to take clear steps to facilitate best interest decisions outside the Court.
Hence, this guidance re-enforces the message that unnecessary litigation should be avoided but that necessary litigation should be encouraged.
NO APPLICATION NEEDS TO BE MADE
Section 5 of the Mental Capacity Act 2005 allows medical professionals 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 interest. A relevant act may include withholding or withdrawing treatment. The seriousness of treatment is not in itself determinative when considering an application to the Court of Protection.
APPLICATION SHOULD BE CONSIDERED
The guidance states that 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 harm the patient 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:-
The medical decision is finely balanced, or
There is a difference of medical opinion, or
There is a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or
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.
APPLICATION MUST BE MADE
An application to the Court of Protection must be made in the following circumstances:
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; and
if the treatment is to be carried out using a degree of force to restrain the person which results in a deprivation of liberty
APPLICATION IS HIGHLY PROBABLE
In some circumstances an application to the Court of Protection is “highly probable”. These situations will be those which do not include the provision of life-sustaining treatment, however, involve the serious interference with the person's human rights.
This will be so even where there is agreement between all those with an interest in the person's welfare about the proposed course of action. Examples provided in the guidance are as follows:
a. where a medical procedure or treatment is for the primary purpose of sterilisation;
b. 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;
c. a procedure for the covert insertion of a contraceptive device or other means of contraception;
d. where it is proposed that an experimental or innovative treatment to be carried out;
e. a case involving a significant ethical question in an untested or controversial area of medicine.
You must remember that 90% of the work needed in mental capacity matters should be carried out outside the Court to limit the scope of the proceedings or avoid them altogether.
You must act promptly and seek legal advice at an early stage as delays are never in best interest of the patient.
With our vast experience of Court of Protection litigation, instructing ELS would bring the right level of expertise from the outset. At ELS we deal with the realities and practicalities of the difficult decisions needed in these cases and we play a role in the entire process not only inputting on the mere legalities.
If you wish to know more about the guidance or the likely changes to the Mental Capacity Act 2005 and indeed any other legal aspects, please do not hesitate to contact us.
Specialist Health and Social Care and Deputyship
(Specialist Healthcare & Corporate Lawyer)
ELS I Essex County Council
T: 0333 0133 277