Medical Treatment: Decisions and the Law

5. Going to Court

CONCLUSION

Whether in the High Court or the Court of Protection, judges considering medical treatment cases have as their focus the best interests of the person who is the subject of the proceedings. While the procedural rules must of course be observed, the need to achieve the right result for that person requires an emphasis on substance over form. Translating parties’ proposals for case-management into workable directions often requires considerable thought and imagination. Resourcefulness is also required in order to capitalise on any possibility of reaching agreement on the substantive issues. But if agreement cannot be reached, differences of opinion as to the desired outcome should not stand in the way of as much co-operation as possible in working out how best to investigate and ventilate the issues in the case.

Contents

  • A Introduction  5.1
  • B Should you go to court?  5.2
  • C  Identifying the right court for medical treatment cases  5.3
  • Courts with jurisdiction to deal with medical treatment cases 5.3
  • The jurisdiction of the Court of Protection  5.4
    • Cases in which the Court of Protection lacks jurisdiction / cases which need to go to the High Court 5.5
    • 16- to 17-year-olds: overlap of the jurisdiction of the Court of Protection and the High Court 5.6
    • Different age cut-offs for different types of case 5.7
    • Summary  5.8
  • D Procedural points common to the Court of Protection and the High Court  5.9
  • Public law issues  5.9
  • The timing of proceedings 5.10
  • How urgent is it? 5.11
  • Introduction to the Official Solicitor and CAFCASS 5.12
  • Who should bring proceedings?  5.14
    • What does the party bringing the proceedings want? 5.16
  • Practice Directions on Bundles  5.17
  • Final hearings 5.18
  • Typing up the order  5.19
  • E The Court of Protection 5.20
  • Location and judges  5.21
  • Sources of procedural rules and guidance 5.22
  • The court’s general approach 5.23
  • The court’s power to make medical treatment decisions 5.24
  • Privacy and publicity  5.25
  • Points to consider before starting proceedings 5.26
    • Litigation friend  5.26
    • Is permission required?  5.27
    • Who should be named as respondents and who should be notified of the proceedings? 5.28
    • Level of judge and initial directions 5.29
    • Deprivation of liberty  5.30
  • Starting proceedings – non-urgent 5.31
    • How are proceedings begun?  5.31
  • Starting proceedings – urgent 5.32
  • First hearing and subsequent directions hearings 5.33
  • Final hearings  5.34
    • Costs 5.35
    • Costs of Official Solicitor 5.36
    • Appeals  5.37
  • F The High Court’s jurisdiction in relation to minors 5.38
  • The High Court generally  5.38
    • The High Court’s jurisdiction 5.38
    • Regional hearings  5.39
    • Procedure and rules  5.40
    • What cases should be brought to court? 5.41
    • Who should be the defendants?  5.46
  • Starting proceedings – non-urgent 5.50
  • Starting proceedings – urgent 5.52
  • Privacy and publicity  5.53
  • First hearing and subsequent directions hearings 5.54
  • Final hearings  5.55
  • Costs 5.56
  • Appeals  5.57
  • G The High Court’s inherent jurisdiction – in relation to ‘vulnerable adults’ 5.58
  • H Conclusion  5.59
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