Preparation

Given the predictability of a refusal of treatment during a crisis, preparatory steps should be taken as long beforehand as possible. These include:

• A full discussion with the patient, where this is practicable, to consider the options which will confront the patient and the carers if, and when, there is a crisis.
• An assessment at as early a stage as possible of the patient’s capacity to consent to or refuse medical treatment. The patient may have capacity to make advance decisions about treatment for a crisis before that event occurs, even if capacity is likely to be lost at that time. If possible, patients should be encouraged to decide for themselves, when capable of doing so, what should happen. Full records of any such decision must be made and if possible approved by the patient. If these steps are taken, many legal difficulties will be avoided. However, it should be noted that advance decisions cannot prevent compulsory treatment under the MHA.
• If the point comes when treatment considered to be necessary to save life is being refused and no prior advance decision is available, an assessment must be made as to the urgency of the case. This should be realistic. False alarms help no-one but, on the other hand, delay should not be allowed where the patient’s life is at risk.
• A decision should be made as to whether the patient is suitable for treatment under the MHA. If this is appropriate, the necessary steps to detain the patient and provide treatment should be undertaken. In general, no court application will then need to be made by those treating the patient.
• If MHA treatment is inappropriate, consideration must be given to the patient ’ s capacity to refuse the proposed treatment. If the patient is found to possess legal capacity, then their wishes must be respected. If there is a substantial dispute about capacity it will be appropriate to make an application to the court for a declaration as to capacity.
• If the patient lacks capacity, and the proposed treatment does not fall within s 63, consideration will need to be given as to whether the treatment is in the patient ’ s best interests by application of s 4 of the MCA, with the starting presumption being Art 2 of the ECHR (the right to life). Factors taken into account will include:
  • the wishes and views of the patient expressed during interludes when they had the relevant capacity;
  • the views currently expressed by the patient;
  • the views of close family or partners (or an IMCA, if appointed) on what they perceive the patient would have wanted;
  • the views of the treating clinicians/ professionals;
  • the likely effectiveness of the treatment; the availability of alternatives;
  • the risks and benefits of the treatment proposed, including the risks arising from chemical sedation/physical restraint which may be required to effect treatment.
• If treatment is agreed by those responsible for the care of the incapacitated patient, generally no court application will be necessary, but if force is required to administer such treatment it would be prudent to seek the approval of the court and if the arrangements for treating will amount to a deprivation of the patient’s liberty, either the authority of the court or a standard or urgent DOLS (‘deprivation of liberty’) authorisation under Sch A1 to the MCA must be obtained if the MHA is not applicable.
• If an application is to be made, however urgent the case, evidence of the need for treatment, the patient’s incapacity and the reasons why the treatment is in the patient’s best interests will be required. Appropriate statements of the relevant evidence should, therefore, be prepared and, if at all possible, a copy of the treatment plan (even if in draft form) provided.
• If it is decided to make an application to the court, as much notice as possible should be given to the patient and practical assistance given to enable them to obtain legal advice and assistance. The Official Solicitor should be notified and, unless there is an obvious alternative, invited to become the patient’s litigation friend in adult medical cases.
• Lawyers at the Official Solicitor’s office are available to discuss applications in relation to medical treatment before an application is made. They should be given as much notice as possible of any application. Any enquiries about adult medical and welfare cases should be addressed to a lawyer in the healthcare and welfare team at the Office of the Official Solicitor, telephone 020 3681 2751, email: oswelfarereferrals@ospt.gov.uk. In urgent cases, a lawyer in the healthcare and welfare team should be contacted by telephone in addition to email.
• The same steps should be taken where the declaration sought is that it is lawful not to provide treatment which is available under the MHA.
• Interim declarations can be granted and hearings can be conducted by telephone where appropriate, and at any time of the day or night. During the pandemic, numerous remote hearings on a video platform have taken place.