Medical treatment – how to decide whether to make an application to the Court of Protection?

New guidance for providers and commissioners as we await the revised Mental Capacity Act Code of Practice.

The Vice President of the Court of Protection, the Honourable Mr Justice Hayden, has published ‘interim’ guidance setting out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the CoP. This guidance is intended to operate until the revised Code is published. We’ve heard various reports that there is likely to be a delay on the consultation of the draft Code but we await a formal announcement.

The guidance looks at seven core areas, helping to guide health practitioners through the decision-making process.

Set out across five pages, the core areas are:

  • Applications to which this practice guidance applies
  • Situations where consideration should be given to bringing an application to court
  • Pre-issue steps
  • Parties to proceedings
  • Allocation of the case
  • Matters to be considered at the first directions hearing
  • Urgent hearings
  • Orders

Cases that involve medical treatment for patients who lack capacity are sensitive and often difficult matters – they require care and attention to the decision-making process surrounding them, including the appointment of an Independent Mental Capacity Advocate in certain circumstances. So, having a clear screening process to determine when you must make an application to court is important.

Providers and commissioner take note

The guidance sets out a list of scenarios where consideration should be given to bringing an application to court – if, after the medical decision-making process there remain concerns that the way forward is:

  • Finely balanced;
  • There is a difference of medical opinion;
  • A lack of agreement as to the proposed course of action; or
  • There is a potential conflict of interest on the part of those involved in the decision-making process.

The guidance states, it is “highly probable” that an application to the CoP is appropriate – and, in any event, consideration must always be given as to whether to make an application to court.

The guidance specifically states that where the decision relates to the provision of life-sustaining treatment and includes, the withdrawal or withholding of clinically assisted nutrition and hydration, an application to the court must be made.

Similarly, where treatment “involves the serious interference with the person’s rights under the ECHR” it is highly probable that the medical team will conclude that it is appropriate to bring an application to court.

Examples, of such cases, include:

  • Where a medical procedure or treatment is for the primary purpose of sterilisation.
  • Where a medical procedure is proposed to be performed on a person who lacs capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cell tissue or bodily fluid to another person.
  • A procedure for the covert insertion a contraceptive device or other means of contraception.
  • Where it is proposed that an experimental or innovative treatment to be carried out.
  • A case involving a significant ethical question in an untested or controversial area of medicine.

But what about those cases where the proposed procedure or treatment is to be carried out using a degree of force to restrain the person – and which amounts to a deprivation of a person’s liberty? An application to court will be required to make this deprivation of liberty lawful.

So far, this guidance follows the usual approach in these types of cases, save that the Official Solicitor costs are to be met (usually) by the provider organisation. Previously, the commissioner has also been included within this, but appears to be specifically excluded in this guidance.


We all like a helping hand, and so Mr Justice Hayden’s guidance note and route map to determining the situations in which consideration must be given as to whether an application should be made to the CoP is very much welcome for providers and commissioners alike.

We have a friendly expert team ready to help – get in touch if you would like support with your medical treatment cases.

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