Court of Protection warning – don’t delay!

In the case of Sherwood Forest Hospitals NHS Foundation Trust and Nottingham University Hospitals NHS Trust v H  Mr Justice Hayden was not best pleased.

The case related to the treatment of a 71-year-old woman who was suffering from squamous cell carcinoma on her left cheek. She had been assessed as lacking capacity in May 2019 but it was not until 20 December 2019 that an application was issued in the Court of Protection. It was not then heard until 14 January 2020. 

Mr Justice Hayden specifically stated that he had no doubt that all those involved in her care have been concerned to do the right thing for her, but he felt it required to be confronted that the delay in this case may mean that a life is lost that could well have been saved. He described that both as a tragedy and extremely troubling.

He noted that one of the reasons that the treatment was not progressed more effectively was that the treating clinicians were perplexed as to whether it was appropriate and if so, in what circumstances for H effectively to be forced, physically and by coercion, if necessary, to attend for her treatment and, if so, how that might be achieved.

Mr Justice Hayden was of the view that an application should have been made by at least mid 2019. He states that a reasonable period before making an application might have been a week to three weeks but not six months. He felt that the Official Solicitor could have been appointed earlier.  

He therefore took the opportunity to remind everyone of the guidance he issued on 17 January 2020 on how to decide whether to make an application to the Court of Protection. You can read our earlier blog on the guidance here.

If you do have any tricky Mental Capacity Act or Court of Protection cases then please do not hesitate to contact us early doors!

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