Medical Treatment: Decisions and the Law

6. Restraint and Deprivation of Liberty

The court’s powers to make medical treatment decisions

The Court of Protection’s powers to make medical treatment decisions are as follows:

  • The power to make declarations as to whether a person has or lacks capacity to make a specified decision, or decisions on specified matters, and as to the lawfulness of any act done, or yet to be done, in relation to that person.
  • The power to make personal welfare orders on behalf of people who lack capacity to make such decisions themselves.
  • The power to make interim declarations, orders and case management directions on an interim basis even if lack of capacity is not established on the balance of probabilities, so long as there is reason to believe that P lacks capacity in relation to the matter and it is in P’s best interests for the court to make the order or give the directions, as the case may be, without delay. This provision is intended to provide for situations where the obtaining of a formal declaration or decision under s 15 or s16 will take time, but common sense suggests that some action may be needed in the interim.
  • Less evidence is required to found the court’s interim jurisdiction under s 48 than that required to justify the ultimate declaration. What is required is sufficient evidence to justify a ‘reasonable belief’. As stated by Hayden J:

‘Ultimately whilst I recognise that, for a variety of reasons, it will rarely be possible at the outset of proceedings to elicit evidence of the cogency and weight required by Section 15, I think it is important to emphasise that Section 48 is a different test with a different and interim objective rather than a lesser one. “Reason to believe” that P lacks capacity must be predicated on solid and well-reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.’

Once a reasonable belief that P lacks capacity is established, the court must then move on to a second stage to decide what action, if any, it is in P’s best interests to take before a final determination of their capacity can be made. Such action may include not only immediate safeguarding steps with regard to P’s affairs or life decisions, but also directions to enable evidence to resolve the issue of capacity to be obtained quickly.

The appropriate directions will depend on the facts of the case, and a balance between the importance and urgency of making the decision on the one hand, and, on the other hand, the principle that P’s right to autonomy is to be restricted as little as is consistent with their best interests. Where capacity itself is in issue, it may be that the only proper interim direction should be obtaining appropriate specialist evidence to determine that issue.

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