Oxfordshire Director of Legal

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Senior judge issues guidance on applications to Court of Protection concerning medical treatment

The Vice-President of the Court of Protection, Mr Justice Hayden, has issued guidance on applications to the court relating to medical treatment.

The guidance sets out the procedure to be followed where a decision relating to medical treatment arises that could involve an application to the Court of Protection.

It is intended to operate until a public consultation and parliamentary scrutiny of a revised code under the Mental Capacity Act 2005 is complete. The guidance is intended to operate until such time as it is superseded by the revised Code.

Applications to the court should be considered where there are concerns that the way forward in any case is finely balanced, or there is a difference of medical opinion, or a lack of agreement among those with an interest in the person’s welfare, or a potential conflict of interest by those involved in the decision making.

An application to the Court of Protection must be made where the decision relates to the provision of life-sustaining treatment, the guidance states.

It says: “This is to be regarded as an inalienable facet of the individual’s rights, guaranteed by the European Convention on Human Rights (ECHR). For the avoidance of any doubt, this specifically includes the withdrawal or withholding of clinically assisted nutrition and hydration.”

Where a case does not concern life-sustaining treatment, but involves the serious interference with the person’s rights under the ECHR, it is “highly probable” that professionals faced with a decision should apply to the court for a comprehensive analysis of best interests, with the person concerned having the benefit of legal representation and independent expert advice.

The guidance states that in urgent hearings in medical treatment cases, proper arrangements should be made for family members to participate and the Official Solicitor should be alerted.

Mark Smulian