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Court of Protection Update (January 2015)

In this update Sally Bradley and Julia Townend, barristers of 4 Paper Buildings, focus on the applicable procedure for cases in which urgent and serious medical treatment is required.

Sally Bradley, barrister, 4 Paper BuildingsJulia Townend, barrister, 4 Paper Buildings

Sally Bradley and Julia Townend, barristers, of 4 Paper Buildings

Alongside the numerous reported cases on urgent medical treatment brought by NHS Trusts there are an increasing number of situations in which advice is being sought by those who are concerned that a patient relative who lacks capacity is being deprived of necessary and urgent medical treatment.

Court of Protection Rules 2007 and Practice Directions

Part 9 of the Court of Protection Rules 2007 sets out the general rules on how to start proceedings in the Court of Protection. Practice Direction 9E supplements Part 9 and addresses situations where urgent medical treatment is required. Serious medical treatment is defined as

"treatment which involves providing, withdrawing or withholding treatment in circumstances where:

(a) in a case where a single treatment is being proposed, there is a fine balance between its benefits to P and the burdens and risks it is likely to entail for him;

(b) in a case where there is a choice of treatments, a decision as to which one to use is finely balanced; or

(c) the treatment, procedure or investigation proposed would be likely to involve serious consequences for P"1.

For the avoidance of doubt "serious consequences" are those which

"could have a serious impact on P, either from the effects of the treatment, procedure or investigation itself or its wider implications. This may include treatments, procedures or investigations which:

(a) cause, or may cause, serious and prolonged pain, distress or side effects;

(b) have potentially major consequences for P; or

(c) have a serious impact on P's future life choices"2.

The cases which fall within Practice Direction 9E are specified by their nature and type. The following decisions are deemed to relate to serious medical treatment:

"(a) decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state;

(b) cases involving organ or bone marrow donation by a person who lacks capacity to consent; and

(c) cases involving non-therapeutic sterilisation of a person who lacks capacity to consent"3.

Practice Direction 9E provides some further detail by way of specific examples of serious medical treatment. These may include:

"(a) certain terminations of pregnancy in relation to a person who lacks capacity to consent to such a procedure;

(b) a medical procedure performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation to another person;

(c) a medical procedure or treatment to be carried out on a person who lacks capacity to consent to it, where that procedure or treatment must be carried out using a degree of force to restrain the person concerned;

(d) an experimental or innovative treatment for the benefit of a person who lacks capacity to consent to such treatment; and

(e) a case involving an ethical dilemma in an untested area"4.

A more generalised provision is set out at paragraph 7 of the Practice Direction. It is clearly stated that there may be other procedures or treatments not contained in the lists at paragraphs 5 and 6 which can be regarded as serious medical treatment. Whether a procedure constitutes serious medical treatment will depend on "the circumstances and the consequences for the patient"5.

Prior to making an urgent medical application Members of the Official Solicitor's staff are prepared to discuss applications relating to serious medical treatment6.

Practice Direction 9E also provides assistance with the drafting of any declarations which an applicant may seek7. The relevant paragraphs are fairly prescriptive. The standard form is likely to be "that P lacks capacity to make a decision in relation to [insert proposed medical treatment or procedure]" and "that, having regard to the best interests of P, it is lawful for the [insert proposed medical treatment] to be carried out by [insert proposed healthcare provider]".

By way of specific example, appropriate terminology for a declaration as to a sterilisation by way of vasectomy may be "that P lacks capacity to make a decision in relation to sterilisation by vasectomy" and "that having regard to the best interests of P, it is lawful for the sterilisation by vasectomy to be carried out by [the relevant healthcare provider]"8

By way of further specific example in the context of withdrawing life-sustaining treatment, the appropriate way of drafting the order sought would be as follows: "That P lacks capacity to consent to the continued life-sustaining treatment measures [specifying precisely what these are]; and that, having regard to the best interests of P, it is lawful for [the relevant healthcare provider] to withdraw the life-sustaining treatment from P"9.

Part 10 of the Court of Protection Rules 2007 sets out the rules relating to applications within proceedings, including without notice applications. Practice Direction 10B supplements the rules and contains guidance on urgent and interim applications. Any prospective applicant in a serious medical treatment case should ensure that the rules set out are adhered to.

Sandwell and West Birmingham Hospitals NHS Trust v CD & Ors: Key principles and procedure to be followed in without notice out of hours medical treatment applications

In Sandwell and West Birmingham Hospitals NHS Trust v CD & Ors [2014] EWCOP 23 Theis J considered the key principles and procedure to be followed in respect of without notice out of hours medical treatment applications.

The patient, AB was a 20-year-old woman who had diagnoses of a severe learning disability, cerebral palsy, severe kyphoscoliosis, type 2 diabetes, epilepsy, hypothyroidism and hypoadrenalism. She was fed through a naso-gastric tube and was faecally incontinent. She was registered blind and was hard of hearing. She was able to communicate in a limited manner through facial expressions and sounds and responded to those she knew well, such as her parents and siblings. She was generally cared for by her parents at the family home where she lived with them and her two siblings. Her parents were her main carers, and Theis J noted that they undertook the care of their daughter "with significant commitment and devotion"10.

AB was admitted to hospital on 12 June 2014 with an illness which had lasted for the previous two to three days. AB's general practitioner had prescribed antibiotics over the telephone, but her parents called an ambulance as they were concerned by the deterioration in AB's condition. Their concerns were confirmed when she was diagnosed as suffering from pneumonia of her left lung. She was admitted to the Intensive Treatment Unit ("ITU") where she remained until 16 June 2014, when she was discharged to the ward. Unfortunately AB deteriorated again and was re-admitted to the ITU on the morning of 20 June 2014.

AB's treating team sought to make an application for declarations that, in the event of her condition deteriorating further, it would not be in her best interests to receive certain forms of life-sustaining treatment. The Trust brought this application because AB's treating medical team did not consider that, in the event of her condition worsening, it would be in her best interests to receive (i) invasive ventilation; (ii) cardio pulmonary resuscitation; or (iii) inotropes and renal support therapy. The application was initially made at about 17:15 on 20 June 2014 to Theis J as the out of hours judge. The information provided to the judge was limited and comprised only the application, some medical notes and a two page document from Dr Y, the joint speciality lead in critical care medicine at the hospital. The Official Solicitor was not represented. The mother of AB joined the hearing by telephone, but it eventually came to light that she was taking the call in the public area of the hospital. Theis J took steps to contact the Official Solicitor who was able to arrange for representation. It was not possible to secure representation for the parents given the urgency and the limited time available. The hearing re-commenced at about 19:30 and resulted in an agreed order endorsed at a hearing on 30 July 2014 that it was not in AB's best interests to be given certain life sustaining treatment.

Theis J raised in her judgement a number of concerns about the practical arrangements for convening out of hours applications and set out some guidance in respect of the same at paragraphs 38 to 39 of her judgment. This guidance requires detailed consideration (authors' emphasis added):

38. It is essential there is compliance with the relevant Court of Protection Practice Directions, in this context in particular PD9E Applications relating to the serious medical treatment and PD10B Urgent and interim applications.

39. In the situation I was presented with on 20 June some basic steps had not been taken and, with the benefit of hindsight, they should have been. These included

(1) Making suitable and sensitive arrangements for the parents to be able to participate in the hearing. Clearly joining a hearing such as this from a public waiting room in the hospital was not suitable. There did not appear to be anyone on the ground at the hospital to assist the parents in relation to participating with this hearing, there should have been. The parents had solicitors advising them and every effort should have been made for them to be able to represent the parents at a hearing as important as this one. If the application had been issued earlier in the week it is likely the parents' solicitor would have been able to secure public funding for them. As their solicitor states in his statement 'If I had been given 2 days notice of this application I could have obtained legal aid for the [parents]. In my view this would have made a great deal of difference to them. The experience of going to court over the issue of whether life-sustaining treatment should be withheld from one's child is extremely stressful even if one has proper legal representation, and I do not believe that families should be put in this position other than in the most urgent of cases, which this was not. The desirability of there being equality of arms between parties in cases involving life and death should be made clear to Trusts in my view.' I agree wholeheartedly with those sentiments.

(2) Not alerting the OS to the application with sufficient time to get a direction from the court for him to be invited to represent AB. Paragraph 8 of PD9E makes it clear the OS is prepared to discuss applications in relation to serious medical treatment before an application is made. The medical notes could have been sent over in the morning of 20 June to the OS. There was no issue in this case AB lacked capacity. Ms Paterson has informed me that in serious medical treatment cases, where the applicant is a Trust or other public body, the OS will expect the applicant to agree to pay one half of his costs acting as a solicitor for P. Where agreement to do so is readily given, matters can then proceed without costs' questions distracting his case manager. He will, of course, act as P's litigation friend and solicitor without such agreement, seeking an order from the court if the agreement is not forthcoming.

(3) The court is there to assist in applications such as this one; the Urgent Applications Judge and the Clerk of the Rules should be alerted at the earliest opportunity that an application is likely and, in suitable cases, application promptly made for a direction for the OS to be invited to act where an application is realistically anticipated, as it clearly was in this case. This should have been done (at the very latest) by 2pm on 20 June. This would have enabled the OS to see the papers and start making enquiries at the earliest opportunity. Proper and effective contingency plans for a hearing that is likely must be put in place at the earliest opportunity, not, as happened in this case, left to the last minute.

(4) It is essential when making this type of application, particularly one that is made out of hours, that a Word version of the draft order is available so any amendments can be made promptly.

(5) The statement in support of the out of hours application gave no information regarding the history or AB's quality of life. Such information is essential material for the court when considering the context in which such an application is being made. There was nothing to prevent that information being obtained in tandem with the clinical and medical evidence justifying the application. The evidence was clear that there were a number of clinicians involved in treating AB. If the application had been made earlier this information would have been readily available."

NHS Trust 1 and another v FG: Key principles and procedure to be followed in without notice out of hours medical treatment applications

The guidance in Sandwell and West Birmingham Hospitals NHS Trust v CD & Ors [2014] EWCOP 23 must be considered alongside the decision of Keehan J in NHS Trust 1 and another v FG [2014] EWCOP 30 which was a case concerning obstetric treatment. Both authorities reiterate the contents of the relevant Practice Directions and build on them.

In NHS Trust 1 and another v FG the Official Solicitor sought guidance on the steps to be taken when a local authority and/or medical professionals were dealing and concerned with a pregnant woman who had mental health issues and potentially lacked capacity to litigate and make decisions about her welfare or medical treatment. There was concern that in a number of recent cases there had not been a full appreciation or understanding of: (a) the planning to be undertaken in such cases; (b) the procedures to be followed; (c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and (d) the evidence required to support an application to the court.

Keehan J set out important guidance on these issues within paragraphs 81-130 of his judgment and within guidance annexed thereto. The intention of the guidance was (i) to prevent the need for urgent applications to be made to the out of hours judge; and (ii) to ensure trusts do not rely inappropriately on the provisions of section 5 of the Mental Capacity Act 2005. Urgent applications to the out of hours judge had to be limited to those rare and few cases where a genuine medical emergency had arisen and an immediate court order was necessary. A failure to plan appropriately and/or a failure to identify a case where an application to the court might be required did not constitute a genuine medical emergency.

The guidance identifies four categories of case where an application would need to be made to the Court11:

1. First, where the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the Mental Capacity Act 2005 or Mental Health Act 198312.

2. Secondly where there is a real risk that P will be subject to more than transient forcible restraint13.

3. Thirdly where there is a serious dispute as to what obstetric care is in P's best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under section 4(7) of the Mental Capacity Act 2005.

4. Finally cases in which there is a real risk that P will suffer a deprivation of her liberty which, absent a court order with the effect of authorising it, would otherwise be unlawful (i.e. not authorised under section 4B of or Schedule A1 to the Mental Capacity Act 2005)14.

In relation to the final category, where there is a real risk that P will suffer a deprivation of liberty which would otherwise be unlawful, Keehan J clarified at paragraphs 97 to 99 of his judgment as follows:

97. The Trusts must, therefore, plan how P is to receive obstetric care in sufficient detail to identify whether there is potential for a deprivation of liberty to arise. When trusts identify there is a real risk that P will suffer an additional deprivation of her residual liberty during transfer to and from the acute hospital and/or when present at the acute hospital, the Trusts must take steps to ensure the deprivation of liberty is authorised in accordance with the law. I use the term 'real risk' to mean that "judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty": AM v South London v Maudsley NHS Foundation and Anthr [2013] UKUT 365 (AAC) per Charles J at para 59.

98. Where the Trusts identify there is a real risk that P will suffer a deprivation of liberty in these circumstances it is for them to decide whether the same is achieved by a standard authorisation under schedule A1 of the MCA, by an application to the court or under another lawful jurisdiction.

99. I do not propose to analyse further what measures or restraint used or proposed to be used to facilitate P's obstetric care would amount to a deprivation of liberty. I limit myself to four observations:

i) a mental health patient enjoys all of the fundamental rights and freedoms guaranteed under the ECHR save to the extent that her liberty is restricted pursuant to the MHA;

ii) restraint or measures to facilitate P's obstetric care which amount to a deprivation of liberty would interfere with her rights under Articles 3, 5 and 8 of the ECHR unless authorised in accordance with the law;

iii) total restraint for very short periods may amount to a deprivation of liberty; ZH v Commissioner of the Police for the Metropolis [2013] 1 WLR 3021; and

iv) P's lack of objection to obstetric care or any restraint used to facilitate it is irrelevant in determining whether the actions amount to a deprivation of liberty: P v Cheshire West and Othrs (above), para 50."

Further in relation to the fourth category of cases Keehan J continued  at paragraphs 126 to 128 to explain his reasoning for including such cases:

126.  A deprivation of P's liberty which is not authorised in accordance with the law will amount to a breach of her rights under Article 5 of the ECHR. As public authorities, Acute and Mental Health Trusts have a duty under s.6 of the Human Rights Act 1998 not to act in a way that is incompatible with P's Convention rights. When planning P's care in cases of this nature, Trusts therefore have a duty to consider whether the interventions they propose or the steps necessary to facilitate them will, or could, amount to a deprivation of P's liberty and, if so, how that should be authorised.

127. Logically, it must follow that if Trusts consider that P's liberty may be deprived to facilitate her obstetric care, but the Trust is unable to deprive her of her liberty under Schedule A1, and no other legal justification for that deprivation of liberty is available, they have a duty to seek the authorisation of P's deprivation of liberty from the Court.

128. Although the Court will not be able to make a welfare order depriving P of her liberty under s 16(2)(a) of the MCA, it will be able to exercise the inherent jurisdiction of the High Court to make such an order provided that it complies with Article 5: see A NHS Trust v A [2014] 2 WLR 607, per Baker J, para 89-96."


Any prospective applicant in a case relating to urgent or serious medical treatment must have regard to the relevant rules and Practice Directions to the Court of Protection Rules 2007. There has been an increasing body of case law to supplement the rules. Particular regard should be had to the authorities referred to within this article in which Theis J and Keehan J have provided essential guidance for this difficult and emotive category of cases. 

[1] Paragraph 3, Practice Direction 9E
[2] Paragraph 4, Practice Direction 9E
[3] Paragraph 5, Practice direction 9E
[4] Paragraph 6, Practice Direction 9E
[5] Paragraph 7, Practice Direction 9E
[6] Paragraph 8, Practice Direction 9E
[7] Paragraphs 17 and 18, Practice Direction 9E
[8] Paragraph 17, Practice Direction 9E
[9] Paragraph 18, Practice Direction 9E
[10] Paragraph 10 of judgment
[11] Paragraph 106 of judgment
[12] Paragraph 113 of judgment
[13] Paragraphs 117 to 119 of judgment
[14] Paragraphs 126 to 128 and 97 to 99 of judgment