Court of Protection guidance: When not to go to Court and how to when you do
The Vice President of the Court of Protection has issued helpful guidance HERE on bringing proceedings in relation to proposed “serious medical treatment”.
There is an expectation that 15 years after the introduction of the Mental Capacity Act (MCA) every acute and mental health Trust will know enough to get the law right even in difficult cases, and get expert advice when needed. The court is increasingly frustrated when poor management by organisations limits the role P can play in decisions or the time available for the court’s scrutiny, and costs consequences are an increasing risk. Where in-house legal teams have limited experience of Court of Protection litigation, instructing external expertise at an early stage is likely to be cost effective.
Caselaw has moved on considerably in recent years, first appearing to increase the situations where court involvement was necessary and then narrowing it, causing confusion and nervousness in clinicians trying to make important and difficult decisions. The update to the MCA Code of Practice is not expected to be published for some time, so this guidance is intended to bridge that gap. The substance of this guidance is not new but it is a helpful summary of how to avoid unnecessary litigation and the process to follow when proceedings are required.
The new guidance amounts to encouragement to trust in clinical judgment and the resulting best interests decisions as long as the necessary processed have been followed and there is unanimous agreement as to relevant capacity and best interests. That process is found in the MCA, professional guidance and the MCA Code of Practice (despite the age of the latter) along with this guidance.
Two of the defining cases in recent years which feed into this guidance are Re Y and FG. Historically, there was a category of treatment termed “serious” which necessitated a court application even where there was no dispute. This was defined mainly by the impact on the patient of the proposed treatment (so donating an organ was “serious” but receiving one was usually not). Since Re Y, clinical “seriousness” is no longer a standalone legal test to determine whether court application is required, although it remains part of the consideration of whether an application is appropriate. The case of FG sets out the process for application when it will be made, including a time frame specific to obstetric cases.
Clinicians – in concert with family members, other professionals and sometimes the non-capacitous preferences of the patient – often make the right decisions even in very difficult cases and can act on these lawfully. However, most front-line staff are not legal experts and need support to ensure they have carried out each steps as required and documented this sufficiently to protect themselves from subsequent challenge. It can be helpful and reassuring to have scrutiny of their processes before taking irreversible steps. For example, it would usually be a proportionate expense to have external review of capacity assessments, best interest meeting agendas and minutes, and best interests analysis or balance sheets to ensure they are robust or recommend an independent capacity assessment, for example.
In line with other legal updates relevant to clinical practice, there is renewed emphasis on the rights and role of the patient and their family/carers. Representation of P is a central concern to the court so it is imperative to take steps to ensure their voice is heard, such as involving an IMCA or representative, and/or the Official Solicitor.
Key guidance: When to apply
In some circumstances an application to the Court of Protection “must always” be considered and is “highly probable” to be appropriate. This is where the decision about the “way forward” in the patient’s treatment:
- Is finely balanced between the benefits and disadvantages of a course of action or between options
- Involves a difference of medical opinion
- Otherwise involves a lack of agreement (for example from family members)
- Entails a potential conflict of interest for the decision-maker(s)
- Further unspecified situations, such as decisions which engage a patient or family’s strongly-held religious beliefs
The only two situations in which an application to court must be made is 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.
Further situations in which an application to court is “highly probable” are where the proposed treatment entails serious interference in the patient’s human rights. These situations include proposed sterilisation or contraception, donation of organs or other tissues, experimental or innovative treatment, and ethical dilemmas, untested or controversial treatment.
Clinician nervousness will often signify a real concern which requires legal advice and potential litigation for a decision or declaration of lawfulness. However, sometimes the clinicians just need reassurance that their proposed treatment is lawful or can be made so by following the right decision-making procedure (and correctly documenting it).
Key guidance: procedure
Once a decision has been made to apply to Court, Practice Direction 3B should be followed and the application made swiftly. Delays are almost always contrary to the patient’s best interests and are frowned up on by the court, whether they are caused by prevarication around the decision at hand, dispute as to the identity of the applicant, or clinicians or in-house legal teams being unfamiliar with legal guidance. There should be early and informal discussion with the Official Solicitor (whose contact information is within the guidance) without waiting for a decision to apply to court. One of the reasons to avoid out of hours emergency applications is that the Official Solicitor does not provide an out of hours service so the patient is very unlikely to be represented.
One thorny issue for Trusts involved in these applications is which organisation should take the role of applicant. The guidance states that medical applications should usually be brought by the commissioner or provider of the clinical or caring services involved, or they should at least be a respondent. Therefore, it does not move the situation forwards, and this will need to be considered on a case-by-case basis, although should not cause delay to any application or the decision-making process. Local agreements and co-operation will be essential. The patient should be a party to the proceedings and it is important to obtain and include in the application papers contact information for family members or others involved in the patient’s life. Cases involving serious medical treatment or ethical dilemmas should usually go to Tier 3 judge, and any case should move to initial case management with a CMC within 28 days, unless it is subject to a very short clinical window.
Urgency has a very narrow meaning in this context, and cases should never require an urgent decision due to delay in applying, only due to genuine urgency of the clinical picture. Procedure for urgent hearings is outlined in Practice Direction 10B and centres on involvement of the patient and their family, and practical steps to avoid administrative delays. If the patient cannot be represented, the court will only grant substantive relief in “truly exceptional circumstances”.
Trusts should seek to follow this accessible legal guidance which will help allow for clinical decision-making even in some very difficult situations without needing to go to court. However, a decision or declaration from the court will ensure protection of the patient’s rights and of the clinicians and organisations involved. Therefore, there must be a risk assessment when considering an application: what is the risk assess of the proposed treatment or lack of treatment to the patient? What are the risks to the organisation and staff, of publicity or reputational harm, that family will change their minds, subsequent challenge from as yet unidentified family members or that a recovered patient may dispute the capacity assessment?
In cases of deprivation of liberty, sterilisation or similarly controversial treatment, an application to court will still be necessary even where there is unanimous agreement. There will always need to be some thought given to whether there is a relevant LPA, Deputy or other relevant issues.
When an application is needed, don’t delay. Earlier legal advice is likely to be more cost-effective than trying to retrospectively comply with guidance. Ensure that clinicians understand that getting court approval will cause some delay from a clinical perspective and there is a risk that the court will not agree with or will change the proposed treatment plan – but whatever the outcome, they will have clarity on the lawful treatment for that patient.