Before an Application is Made
The following decisions are all 'excluded decisions'. This means that decisions about these issues cannot be made under the Mental Capacity Act.
| Situation |
|---|
| Consent to treatment under the Human Fertilisation and Embryology Act 1990 or the Human Fertilisation and Embryology Act 2008. |
| Consent for a child of an incapacitated parent to be placed for adoption by an adoption agency. |
| Consent to the making of an adoption order. |
| The discharging or parental responsibility for a child's welfare. |
| Cases where there is a dispute about whether a particular medical treatment will be in a person's best interests. |
| Consenting to marriage or a civil partnership. |
| Consenting to sexual relations. |
| Consenting to a decree of divorce or dissolution of a civil partnership, on the basis of 2 years' separation. |
| Decisions about voting in a public election or referendum. |
If a person is found to lack capacity to make any of these decisions:
- Action should be taken as appropriate to safeguard the person from any risk of harm or abuse; and
- Legal advice should be sought as required to determine the appropriate course of action.
Following recent case law and the withdrawal of the previous Court of Protection Practice Direction 9E on serious medical treatment, there is no longer a requirement to take the following matters to the Court of Protections without exception:
- The proposed withholding or withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state;
- Cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person; and
- The proposed non-therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes).
However, cases involving these issues must continue to be considered on an individual basis, and many will still need to go to Court for a decision. It is advisable to always seek legal advice when making one of these decisions on a Best Interests basis.
The following are all situations when an application to the Court should be made.
| Situation |
|---|
| A person is being Deprived of their Liberty in an environment where the Deprivation of Liberty Safeguards do not apply. |
| There is doubt about whether withholding or withdrawing life sustaining treatment is in the patient's best interests. |
| There is disagreement regarding a serious decision, which cannot be settled in any other way; this includes where a person should live and what medical treatment they should receive. |
| It is unclear whether proposed serious and/or invasive medical treatment is likely to be in the person's best interests. |
| There is genuine doubt or disagreement about the existence, validity or applicability of an advance decision to refuse treatment. |
| Stopping or limiting contact with a named individual because of risk of harm or abuse to a person lacking capacity to decide on the contact or consent to it. |
| Stopping or limiting contact with a named person where there is a Deprivation of Liberty Safeguard (DoLS) in place already. |
|
Where there is no Attorney or Deputy, authorisation is required so that someone can sign a legally binding contract on the incapacitated person's behalf e.g. a tenancy agreement. |
Unless the circumstances above apply, decisions should normally be made without the involvement of the Court by agreement between the professionals and the person’s family. However, decisions about these matters can still be referred to the Court of Protection where:
- There is disagreement about the person's mental capacity;
- There is disagreement about what is in the person's Best Interests; or
- The decision is particularly complex; or
- The decision involves difficult ethical issues.
If there are existing proceedings relating to the person in the Court of Protection it will usually be more appropriate to request that any new matters that arise are added to the existing proceedings, rather than making a new application.
You should seek the advice of legal support about:
- The best course of action to take; and
- The forms that need to be completed.
When any proceedings in the Court are concluded, the Judge will give a judgment setting out:
- Their views on the specific matters that it has been asked to consider;
- Their decision in regard to those determinations it has been asked to make; and
- The reasons for reaching that conclusion.
After the judgment, an order will be drawn up giving effect to the judgment.
It is therefore very important that the following is decided, and clearly recorded at the point of application:
- The specific matters that the Court is being asked to consider;
- The specific determinations that the Court is being asked to make; and
- Where an order is requested, the terms of the order that the organisation is seeking.
'The ICB seeks a determination that P has capacity to make a decision about matters relating to the medical treatment of his Parkinson's Disease'.
'The Local Authority seeks a determination that P lacks capacity to make a decision about where to live' and
'The Local Authority is seeking a determination that it would be in the Best Interests of P to live at number 32 Petticoat Lane in a supported living tenancy' and
'The Local Authority is seeking an order that P should move from his parent's address to number 32 Petticoat Lane in a supported living tenancy'.
The Court has powers to grant urgent or interim orders. Interim orders are usually made on a temporary basis by the court until such time as it is able to make a firm decision on the matter, whereas urgent orders are usually made on the available evidence because the matter cannot wait.
Where the Court grants orders on an urgent or interim basis, these will be valid from the day that the Court grants them until such time as the Court declares they are no longer in force.
If an order is required to be made urgently:
- It must be clearly recorded on the application as urgent; and
- The rationale for the urgent order request must be clear.
To prevent the need for the involvement of multiple Courts, the Mental Capacity Act gives permission for a family Court that is already involved in family proceedings to:
- Make decisions regarding mental capacity; or
- Transfer cases about mental capacity to the Court of Protection.
If the person who lacks capacity (or may lack capacity) is 16 or 17 years of age you must therefore establish whether:
- There are on-going family proceedings in a family Court; or
- There is an existing Court Order made by a family Court; and then
- Notify your legal support as soon as possible; so that
- Arrangements can be made to establish whether the family Court will hear the matter.
You should only proceed to make the application to the Court of Protection if:
- The family Court declines to hear the case; and
- The family Court does itself not transfer the case to the Court of Protection.
Any application to the Court of Protection that you make in this situation should explain:
- The on-going role of the family Court; and
- The reasons that the family Court have provided about why they will not hear the case.
Note: If the matter relates to authorisation of a deprivation of liberty, an application can also be made to the National Deprivation of Liberty Court.
Only certain people have the right to apply to the Court of Protection without first seeking the Court's permission. See: The Court of Protection, Deputy’s and the Public Guardian.
Statutory bodies and organisations do not fall within this cohort and must seek permission to apply, unless the application:
- Concerns only property and affairs;
- Is being made under section 21A for the review of a DoLS; or
- Seeks a decision of the Court that will be relied upon to deprive a person of their liberty.
The process of applying to the Court for permission to make a full application should be managed by a person with the legal expertise to do so.
In order to make a decision the Court will need the following information:
- The organisation's connection to the person who lacks capacity (or may lack capacity);
- The reasons for the application;
- The benefit to the person of the order or direction being sought; and
- Whether or not the benefit can be achieved in any other way.
It is likely that you will be asked to write a short statement in order to provide this information.
Any evidence that you submit to the Court of Protection should be recorded using form COP24.
It is always important that any written statement that you submit to the Court is:
- Clear and concise;
- Well structured (the use of headings is appropriate in most cases);
- Relevant to the circumstances or questions to be answered;
- Evidence based;
- Signed and dated; and
- Submitted in a timely way.
The Court will use the information submitted to decide whether their permission to make a full application should be granted (or not).
The outcome will either be:
- Permission to apply is granted;
- Permission to apply is not granted;
- Further information is required.
You should be notified of this outcome by legal support as soon as they receive the correspondence from the Court.
Last Updated: November 27, 2024
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