Good practice guidance on accessing the Court of Protection
When to apply to the Court of Protection
The Court of Protection is a specialist court, set up as part of the Mental Capacity Act (MCA), to deal with decision-making for adults who may lack capacity to make specific decisions. Generally, the court has a range of powers, including decisions about:
- whether a person has capacity to make a particular decision
- whether an action is in a person’s best interests
- whether a person is being deprived of their liberty
- the validity of lasting and enduring powers of attorney
- the appointment of deputies.
Decisions about whether an application should be made to the Court of Protection must be informed by the MCA Code of Practice and case law. Those people who have a legal duty to follow the MCA Code of Practice should ensure that cases are taken to the court when they meet the conditions set out in the Code. This includes the employees of local authorities, National Health Service (NHS) trusts and care providers, general practitioners and Independent Mental Capacity Advocates (IMCAs).
When the Court of Protection must be accessed Open
The Code of Practice confirms some of the situations when decisions must be taken to the Court of Protection (Section 8.18). These are:
- the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS)
- cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person
- the proposed non-therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes)
- cases where there is a dispute about whether a particular treatment will be in a person’s best interests.
Practice Direction 9E (PDF) of the Court of Protection provides further information about which serious medical treatment cases should be heard by the court.
Case law has set out when a case involving a termination of pregnancy must be taken to the Court of Protection. This includes situations where:
- there is a dispute about capacity
- the patient may regain capacity during or shortly after pregnancy
- the decision of the medical team is not unanimous
- the patient, the potential father or the patient’s close family disagree with the decision
- the procedures under section 1 of the Abortion Act have not been followed or
- there are other exceptional circumstances, for example the pregnancy is the patient’s last chance to conceive (see D v An NHS Trust (Medical Treatment: Consent: Termination) (2004) FLR 1110).
When the Court of Protection should normally be accessed Open
The Code of Practice also provides details of situations when the Court of Protection should be accessed. This includes cases where:
- There is doubt about whether withholding or withdrawing life-sustaining treatment is in the patient’s best interests (5.33).
- There is a major disagreement regarding a serious decision, which cannot be settled in any other way; this includes where a person should live (6.12 and 8.28).
- It is unclear whether proposed serious and/or invasive medical treatment is likely to be in the best interests of the person who lacks capacity to consent (8.24).
- There is genuine doubt or disagreement about the existence, validity or applicability of an advance decision to refuse treatment (8.28).
- A family carer or a solicitor asks for personal information about someone who lacks capacity to consent to that information being revealed (8.28).
- Stopping or limiting contact with a named individual because of a risk of harm or abuse to a person lacking capacity to decide on the contact (8.28); the DH (2010) has said that Deprivation of Liberty Safeguards should not be used in non-contact cases other than as a short-term measure.
Fred has advanced throat cancer. He had capacity to make the decision about starting chemotherapy to treat his cancer but his condition has now progressed and he has been assessed as lacking capacity to make a decision about whether to continue with this treatment. The medical staff believe that further chemotherapy is not in Fred’s best interests, particularly because the prognosis is not good, and in order to receive the treatment he has to be restrained, causing him a great deal of distress. His son and daughter disagree and state that their father would want the medical staff to do everything they could to treat his cancer. The primary care trust responsible for Fred’s treatment applies to the court for a decision.
Anna has dementia and lacks capacity to decide where to move following the closure of her current care home. There is dispute between the IMCA and local authority about which option is in Anna’s best interests. The IMCA who was instructed for the accommodation decision is concerned that the option proposed by the local authority will severely limit the opportunity for contact with the few people she does know and she counts as friends. Anna enjoys going out but the home proposed has poor access to public transport, shops and other facilities. They have visited the new home with Anna, who displayed clear signs of not wanting to move there. The local authority will not reconsider its decision. The IMCA draws its attention to the Code of Practice and the local authority makes an application to the Court of Protection for a decision.
A safeguarding adult alert has been raised about Faye, who has autism. There are concerns that she is being neglected and financially abused in the family home. Faye has been assessed as lacking capacity to make decisions on these matters. The local authority is proposing to move her to a care home against the wishes of her family. It wants to put some restrictions on Faye’s contact with her family after a move. The local authority makes an application to the Court of Protection regarding Faye’s residence and contact with her family.
The Court of Protection can be used to authorise deprivation of liberty outside a care home or hospital (where the Deprivation of Liberty Safeguards can not apply). See, for example,  EW Misc 10 (EWCOP) – The PCT v P, AH & The Local Authority.
In Re A (Adult) and Re C (Child); A Local Authority v A (2010) EWHC 978 (Fam), Mr Justice Munby (now Lord Justice Munby), gave further guidance when a court should or must be accessed. He stated at paragraph 68:
Section 47 apart, if a local authority seeks to control an incapacitated or vulnerable adult it must enlist the assistance of either the Court of Protection or the High Court.
And in the following paragraph (69), he stated:
The local authority, it is to be noted, may provide advice and assistance, but there is nothing to suggest that it can intervene to regulate or control matters without judicial assistance.
In paragraph 96, he stated:
What emerges from this is that, whatever the extent of a local authority’s positive obligations under Article 5, its duties, and more important its powers, are limited. In essence, its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court. But, and this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court. Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council  EWHC 152 (Admin),  1 FLR 1660, at para . But it must follow up any such intervention with an immediate application to the court.
As seen above, the Court of Protection should not only be accessed when there is a dispute. The motivation to access the court could be to ensure that the person can access the additional safeguard that the courts have to offer for decision-making – particularly where the outcomes of the decision could have serious consequences for the person. This means that someone trying to get a decision addressed by the court need not be in dispute about the decision or have a view about what decision should be made.
An IMCA is appointed for Seema, a woman with learning disabilities and mental health needs. After a case of financial abuse where she lost several thousand pounds, a mental capacity assessment was completed. The assessor concluded that she lacked capacity to make decisions for large amounts of money and recommended that there should be an application for a deputy to be appointed. Seema was unhappy with this outcome. In response, a further assessment was arranged with a different assessor, which found that she did have capacity. The IMCA believes that the Court of Protection should make a decision on her capacity to manage her finances, particularly because she has a lot of money and this was not the first time she had been financially abused. The local authority makes an application to the Court of Protection to make a decision about Seema’s capacity to make financial decisions, and to appoint a deputy if required.
Does there have to be a dispute? Open
Often there will a dispute when the option to access the Court of Protection is being explored. For example, a family member, advocate or the person themselves may have a strong view about what is in the person’s best interests, which may differ considerably from that of the local authority or health trust. Where there is a dispute it is important to consider alternatives to legal action. These include:
- Informal resolution processes, such as best interests meetings and mediation.
- Following a complaints or disputes resolution procedure.
- Referring concerns to the relevant ombudsman.
When judicial review may be an option Open
The Court of Protection can only make decisions that could be made by the person who lacks capacity themselves, for example whether they have capacity or what is in their best interests.
If a person disagrees with a decision made by a local authority or primary care trust, an option for challenging such a decision is to apply for judicial review. Judicial review is a form of court proceeding where a judge reviews the lawfulness of a decision or action made by a public body. In general terms, judicial review may be appropriate where the challenge is based on an allegation that the public body has taken an unlawful decision or action, and there is no adequate alternative remedy. Applying for judicial review will usually only be considered if the disagreement cannot be resolved following a formal complaints procedure. Judicial review involves the court in deciding not whether the public body has made the ‘right’ or ‘correct’ decision, but whether the correct legal basis has been used in reaching it. For example, a recent judicial review found that a local authority had failed to consult adequately when making the decision to move a man with autism ( EWHC 696 (Admin)).
Mavis had lived in a specialist nursing unit for people with dementia for three years. She was assessed as lacking capacity to make decisions about where she lived. A continuing NHS healthcare review was undertaken and found that she no longer qualified for NHS funding. The local authority was unwilling to fund the cost of her current service, which meant that she would need to move.
Mavis’ carers were very concerned of the potential impact on Mavis of a move. The following options were available to them:
- making an application for a judicial review of the health trust’s decision that Mavis no longer qualified for continuing care
- making an application for a judicial review of the local authority’s decision not to continue to fund her in her current service
- making an application to the Court of Protection to ask for a legal judgment about where it is in Mavis’ best interests to live.
As is seen in the case study above, at times there may be a choice of challenging decisions through either judicial review or application to the Court of Protection.
Further information about judicial review can be found on the HMCS website.