Court of Protection (Healthcare and Welfare cases)

Useful practice directions: appointment of a litigation friend | serious medical treatment | out of hours |

Under the Mental Capacity Act 2005, healthcare and welfare proceedings begun in the High Court under the court’s inherent jurisdiction before 1 October 2007 may continue to be dealt with in the High Court until a final decision is made (The Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007 SI 2007 No. 1898). However from 1 October 2007 the principles of the Mental Capacity Act 2005 and the Code of Practice will also apply to these cases.

Healthcare and welfare proceedings begun after 1 October 2007  must be made to the Court of Protection. Further details can be found on the Office of the Public Guardian's  (OPG) website.

The Official Solicitor is a litigation friend of last resort. If the person who lacks capacity (‘P’) is a party to the proceedings the Official Solicitor may act as ‘P’’s litigation friend of, if so appointed by the court. He may also act as advocate to the court if invited to do so by the court.

Some healthcare matters are so serious that they must be brought to the court for a decision, for example:

· applications to  withhold or withdraw artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state,
·  application for the non-therapeutic sterilisation of a person who lacks capacity to consent ,
·  application involving organ or bone marrow donation by a person who lacks capacity to consent

Other cases involving serious medical treatment may be brought to court if there is serious doubt or disagreement about whether a particular treatment will be in P’s best interests (see PD 9E for further examples).

Serious medical treatment cases must be heard by a judge of the court who has been nominated as such by virtue of section 46(2)(a) to (c) of the Act  (i.e. the President of the Court of Protection, the chancellor or a puisne judge of the High Court).PD 12A

Applications may also be made in  a wide range of other healthcare and welfare disputes, usually in respect of residence and contact matters, when there is a serious justiciable issue requiring a decision by the court.

A number of practice directions have been issued in relation to the Mental Capacity Act 2005 and a full list can be found on Her Majesty's Courts Service website 

However, the following may be especially helpful in healthcare or welfare cases:

Serious medical treatment (PD 9E)

Out of hours (PD10B)

Appointment of a litigation friend (PD 17A)

For further information please contact the adult healthcare and welfare team on 020 7911 7227

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