Don’t delay making your Court of Protection applications

In a recent decision, the Court of Protection granted a declaration that it was lawful and in the best interests of a mentally incapacitious person to be given anti-hypertensive medication covertly. It also reminded NHS Trusts not to delay applying to the court where P lacks capacity and is refusing treatment believed to be in his best interests.

The case of An NHS Trust v XB involved P who lacked capacity to consent to treatment due to his diagnosis of resistant paranoid schizophrenia. P has serious hypertension which required urgent medication with anti-hypertensives. P’s refusal to take the medication would result in a very serious risk to his health, including his death. The Trust applied to the Court of Protection for a declaration that it was in P’s best interests to receive treatment covertly.

This case is not of itself unusual: applications to the Court of Protection in relation to people who lack capacity to make decisions about their treatment are not unusual with the court looking at the best interests decision weighing up the advantages and disadvantages of treatment prescribed.

But the case is notable for the court’s response to the Trust for not bringing the matter to the court sooner. In particular, it criticised a decision not to commence court proceedings in September 2019 when there was a clear need to do so in the face of the family’s opposition to the use of covert medication, and instead waiting for six months to go to court. The court acknowledged the very real pressures on the Trust due to Covid-19. However, it emphasised that the need for “very serious consideration” to be given by any Trust in a similar situation of the need for an application to be made to the court.

Two issues are of importance in this case. The first is the administration of covert medication which is a serious interference with an individual's right to respect for private life under Article 8 ECHR. The second is the view of P’s family who were concerned with the need for ongoing covert medication and had raised it as an issue previously with P’s treating team.

Reflecting on this concern, the court referred to the Vice President of the Court of Protection’s guidance issued on 17 January 2020 relating to applications concerning medical treatment. The guidance makes clear that if at the end of the medical decision making process there remains concerns or there is a “lack of agreement as to a proposed course of action from those with an interest in the person's welfare' (paragraph 8 ( c)) then 'it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required' (paragraph 8). The guidance also makes clear at paragraph 10 that in any case that 'involves a serious interference with the person's rights under the ECHR' it is 'highly probable' that an application should be made.”

This case presents a good opportunity to review the Vice President’s guidance and you can read our earlier blog on the guidance here.

In the meantime, do get in touch if you’d like to discuss the issues raised here or speak to one of our mental capacity specialists. We have experience of advising both providers and commissioners across the health and care system on all aspects of Court of Protection matters.

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