Guidance on serious medical treatment

Practice Direction 9E had advised the procedures relating to “serious medical treatment”, a contentious and much-debated area of law which therefore lacked official guidance until now, with the publication of new Court of Protection Guidance on 21 January 2020 (Guidance).

The Guidance will operate as an interim measure given the current development of a revised Mental Capacity Act Code of Practice (Code). The Code, when published, will supercede the Guidance.

Applications relating to medical treatment

The new Guidance addresses two aspects :

• Situations where consideration should be given to bringing an application to court;
• The expectations of the Court in relation to how an application should proceed.

The Guidance begins by setting out the context and legal background relating to the law on making decisions about the treatment of people who lack capacity, namely Section 5 of the Mental Capacity Act 2005 (MCA). Section 5 provides a defence to liability for a clinician carrying out (or withdrawing) treatment where they reasonably believe that the person in question lacks the necessary decision-making capacity, and that the act (the treatment or lack of it) is in the person’s best interests.

Considering bringing an application

The Guidance makes clear that just because certain medical treatments may be defined as “serious”, this does not mean that an application to the Court of Protection must automatically be made. Indeed, providing that the MCA 2005, the Code and any relevant professional advice are followed, in principle there may be no need to apply to the Court. This covers situations where there is agreement as to the “decision-making capacity of and the best interests of the person in question”. However, where Section 5 is not engaged there may be no defence for the clinician, and so an application to the Court may be required.

If the medical decision-making process presents certain doubts or a lack of clarity and there “remains concerns” about the way forward in a case, then it is “highly probable” that an application to the Court will be required. The Guidance sets out the following non-exhaustive examples of such doubts:

• The way forward is finely balanced;
• There is a difference of medical opinion, or
• 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.

If such a scenario arises then the practitioner must at least give consideration to whether an application to Court is needed.

Further, due to the engagement of the person’s ECHR rights, if any of the above apply and the medical decision relates to life-sustaining treatment (and this includes specifically the withdrawal or withholding of clinically assisted nutrition and hydration), then an application to Court must be made.

It is worth noting that in cases not relating to life sustaining treatment where the case includes a serious interference with a person’s rights under ECHR then it is:

“highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of [capacity and] best interests, with [the person] having the benefit of legal representation and independent expert advice.”

This applies even where there is agreement as to how to proceed.

Examples scenarios given where there is an infringement of ECHR rights involved 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 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;
• a procedure 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 involving a significant ethical question in an untested or controversial area of medicine.

In addition, an application will need to be made to the Court if a deprivation of liberty is put in place. This would occur where the treatment would require a degree or force or restraint, and this restraint would go beyond the parameters set out in sections 5 and 6 of the MCA 2005. Since this would constitute a deprivation of liberty the authority of the court will be required to make the deprivation of liberty lawful.

The Guidance contains information about how to make an application and the steps to take, and Ward Hadaway will be able to guide you through this process.

For further information please contact Alexia Dawson on alexia.dawson@wardhadaway.com or 0330 137 3359.