Serious medical treatment cases in the Court of Protection
Produced in partnership with Alex Ruck Keene of 39 Essex Chambers
Serious medical treatment cases in the Court of Protection

The following Private Client practice note Produced in partnership with Alex Ruck Keene of 39 Essex Chambers provides comprehensive and up to date legal information covering:

  • Serious medical treatment cases in the Court of Protection
  • Medical treatment of those without capacity to consent
  • Serious medical treatment
  • Applications to the Court of Protection
  • The court’s powers on a serious medical treatment application
  • Case management of serious medical treatment cases
  • Pre-issue
  • Parties to proceedings
  • Allocation of SMT cases
  • Matters to be considered at the first directions hearing
  • More...

Medical treatment of those without capacity to consent

Generally, it is the patient's (P’s) consent which makes invasive medical treatment lawful. Where P is unable to consent to treatment, it is lawful to give P treatment which is necessary in their best interests. Section 5 of the Mental Capacity Act 2005 (MCA 2005) now provides a general defence for acts done in connection with the care or treatment of a person, provided that the actor has first taken reasonable steps to establish whether the person concerned lacks capacity in relation to the matter in question and reasonably believes both that the person lacks capacity and that it will be in that person’s best interests for the act to be done. In 2018, the Supreme Court confirmed in NHS Trust v Y that, if the provisions of MCA 2005 are followed, any relevant professional guidance observed and relevant guidance in the Code of Practice followed, including as to the undertaking of the decision-making process, then, if there is agreement at the end of the decision-making process as to (a) the decision-making capacity of and (b) best interests of the person in question, then, in principle, medical treatment may be provided to, withdrawn from or withheld in accordance with the agreement, without application to the court, in reliance upon the defence in MCA 2005. However, as set

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