When a loved one is unable to consent to medical treatment, we understand how stressful and traumatic it can be when disagreements arise about the provision, withdrawal or withholding of medical treatment.
A mental capacity assessment must be undertaken if there is any doubt as to whether a person is able to consent to medical treatment e.g. due to a disability or vulnerability before any decision regarding treatment can be made.
If a person lacks capacity to make decisions about their medical treatment, a best interests meeting must be held with professionals and family members to try and agree on what is in the person’s best interests. The decisions must be specific to the actual medical treatment being proposed (e.g. amputation, hip replacement) and not a general decision that would cover any type of procedure or treatment.
What does serious medical treatment mean?
Serious medical treatment decisions occur when there is a fine balance between the benefits, burdens and risks where a proposed course of action may have serious consequences for the patient. Eg. the proposed withdrawal of clinically assisted nutrition and hydration or antibiotics which may lead to serious consequences for the patient. Serious consequences include treatment, procedures or investigations which:
- Cause or may cause serious and prolonged pain, distress or side effects
- Have potentially major consequences for the patient
- Have a serious impact on the patient’s future life choices.
Not all medical treatments defined as “serious” need an application to the Court of Protection. It does, however, indicate the need for special care and attention in the decision making process surrounding them including the appointment of an Independent Mental Capacity (IMCA) in appropriate circumstances.
When is an application to the Court of Protection needed?
An application to the Court of Protection can be made when the “way forward” in a person’s treatment:
- Is finely balanced between the benefits and disadvantages of a course of action or between options
- Involves a difference of medical opinion
- Involves a lack of agreement (eg. from family members)
- Involves situations where decisions engage a patient or family’s strongly-held religious beliefs.
- There is potential conflict of interest on the part of those involved in the decision making process
- The proposed medical treatment is regarded as being experimental
An application MUST be made when the treatment creates a deprivation of liberty or when one of the above arises in a decision about life-sustaining treatment, including the withdrawal or withholding or clinically assisted nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state.
Further situations could also include where the proposed treatment entails serious interference in the patient’s human rights such as proposed sterilisation, contraception, donation of organs or bone marrow, experimental or innovative treatment and also ethical dilemmas such as untested or controversial treatment.
It is important to note that the Court of Protection cannot compel a treatment clinician to provide a particular form of treatment to the patient that is not being offered. The Court can only consider whether it would be in the patient’s best interest for the proposed course of action or treatment to proceed. The fact that a patient lacks capacity does not mean they would be necessarily entitled to treatment they wouldn’t ordinarily receive if they had capacity.
Who makes the application to the Court of Protection?
It is expected that the hospital proposing the treatment will make the application, but any party can bring an application in the event of a dispute. The Court of Protection is also able to hear urgent cases where a treatment decision is required due to the circumstances of the case.
Who pays the legal costs?
The cost of the patient’s representation by the Official Solicitor may be met partly by the treatment provider and from public funds. Family members are responsible for their own legal costs but may be eligible for legal aid and we can assist with the application.
Here to help
Our team understand that disputes concerning a loved one’s treatment is not only extremely serious but can also be traumatic for the families which is why we provide a sensitive and compassionate service. We work closely with specialist Barristers and medical experts to ensure your views and the evidence is clearly articulated to the court. To discuss your situation, please call our team on 01926 354704 or email courtofprotection@moore-tibbits.co.uk for a free initial telephone consultation.
One of our recent cases:
A Midlands NHS Trust v RD [2021] EWCOP 35
We acted for the parents of a 37 year-old woman ‘RD’ who suffered from an extremely serious and debilitating condition, anorexia nervosa. Her prognosis was very poor and her recovery was very unlikely. The hearing was to determine whether it was in RD’s best interests to receive compulsory treatment for her disorder under the Mental Health Act (even though in the short term, it might prevent her death).
Pursuant to the Mental Health Act, RD received months of treatment at a local hospital and specialist ward without success. On the few occasions where there had been some weight gain, this had virtually always been lost immediately following her discharge. The doctor in this case took the view that it would not be clinically appropriate for RD to be detained under the Mental Health Act any further. It was likely to have a detrimental effect on her wellbeing and make the situation worse, increasing the chance of a sudden death.
There would need to be months of further treatment which would cause further distress. Restoring her weight has had no impact on her cognitions or behaviours and the chance of success was less than 5%. Restraint was extremely risky and she would suffer physical, emotional and psychological harm.
The court ruled that RD lacked the relevant capacity and that further compulsory treatment was not in her best interests. Mr Justice Moor: “I am removing any threat of compulsion or compulsory admission to hospital under the Mental Health Act from RD”. “I do, however, urge her to comply with what the doctors recommend and what I, myself, ask her to do, namely to take the nutrition that she so desperately needs so her life can be prolonged”.
Please click here to read the full Judgment.
For more information and to discuss your situation, please contact Yvonne Chapman on 01926 354704. Alternatively, our health and welfare team are available to help. Please click here for further details.