A senior Court of Protection judge has issued revised guidance for healthcare commissioners and providers on applying to Court in respect of patients that lack capacity.

The Guidance sets out that an application should be strongly considered where: 

If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:

  • finely balanced
  • there  is a difference of medical opinion;
  • 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 on the part of those involved in the decision-making process,

then consideration should be given to an application, and it is likely that an application should be made.

Where a decision falls within the above and relates to the provision of life-sustaining treatment an application to the Court of Protection must be made.

Matters may also need to go to Court where:

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

Applications must also be made in situations where the patient is deprived of his/her liberty which is not otherwise authorised. 

The guidance goes on to give further detail on the processes that should be followed ahead of, and as part of, applying to Court.

There is also earlier guidance from the Court on planned interventions in birth.

For advice on medical treatment issues, including emergency advice, please contact the Capsticks public law team on 020 8780 4860.