Deciding for others in medical treatment

Traditionally, the High Court exercised its inherent jurisdiction when making declarations or orders in relation to medical treatment issues. However, on 1 October 2007 the Mental Capacity Act 2005 (‘MCA’) came into force and provided a statutory framework to assist with the decision-making process for people who lack capacity. The provisions of the MCA extend far beyond medical and treatment decisions alone, but it should now be the starting point for anyone approaching the issue of medical treatment decision making in adults. The MCA must be read in conjunction with the Mental Capacity Act 2005 Code of practice (‘the Code’), which provides a useful explanation of the principles and of the suggested approach to the consideration and assessment of the relevant issues. The way in which the MCA impacts upon individual aspects of the decision-making process is explored in greater detail below, as is the impact of case law including the Supreme Court’s analysis of best interests in Aintree. The specific issue of deprivation of liberty under the MCA is dealt with in Medical Treatment: Decisions and the Law, Third Edition - chapter 6.

The substantial body of case law addressing decision making for others before the MCA is still very relevant in the post-MCA world. This reflects the fact that the MCA essentially codified and developed, rather than re-wrote, existing principles. This is not to downplay the profound impact of the MCA, which has been extensive and significant in both health and social welfare practice. The Court of Appeal has expressly confirmed that the MCA has done nothing to oust the court’s pre-existing inherent jurisdiction over vulnerable adults who fall outside the scope of the MCA.

For as long as professionals have sought declarations as to best interests, the courts have emphasised the importance of bringing such cases as soon as it becomes clear that a determination will be required. Notwithstanding repeated entreaties, applications are still made out of hours or on short notice for declarations in respect of treatment which should have been anticipated weeks, sometimes months, in advance. In the case of advance decisions, one of the issues central to the court’s assessment will be whether or not a person had capacity at the time the decision was made. Often it will be possible for the case to be notified to the Official Solicitor and for a formal assessment of capacity to be undertaken before a person lapses into unconsciousness or otherwise loses capacity. The effect of any delay in properly assessing the relevant issues in such a case may well be determinative of the court’s assessment as to validity. Courts will expect a high standard of vigilance and anticipation of the issues that arise in relation to the validity of advance decisions. A failure properly to investigate issues such as capacity at an early stage may well result in treatment being provided against a patient’s valid advance decision.

Early and proper assessments of all the relevant issues must be conducted. Timely notification of cases can then be made both to the Official Solicitor (or CAFCASS) and the court. There will inevitably be cases were circumstances conspire to prevent early notification. In urgent cases the court will always find a way to accumulate the appropriate evidence and take such urgent decisions as are made on the basis of the information before it. Nevertheless, there are frequent occasions (often involving pregnancies in women suffering from mental illness where the need for judicial intervention is foreseeable) where issues are raised all too late in the day. In this edition we emphasise once again the imperative of putting the Official Solicitor and the court on notice if it seems likely that an application will be made. In the event that matters resolve, the Court can be stood down. If an application is necessary, the best interests of the patient will have been served by providing some warning of the need to apply.

This article is adapted from Medical Treatment: Decisions and the Law, Third Edition written by members of Serjeants’ Inn Chambers, and edited by Christopher Johnston QC. This title is also available as part of a subscription on Bloomsbury Law Online.

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