The serious medical treatment guidance says that if people cannot agree about a decision to provide life-sustaining treatment for someone, the Court of Protection should be asked to decide.
If everyone agrees what is in someone’s best interests, there is no need to go to court. But sometimes relatives or attorneys may disagree with each other or with professionals.
In other situations relatives, attorneys and professionals might all agree, but the person who lacks capacity shows signs that they disagree. For example, an older person with advanced dementia who does not want to move into a care home, even though everyone thinks this would be the best way to keep them safe.
The Court of Protection
The Court of Protection is a court in England and Wales that can make decisions on behalf of people who cannot make a decision for themselves.
The court can:
- decide if someone has mental capacity to make their own decision
- make a decision on behalf of someone who lacks capacity
Going to court can be a daunting prospect, but it can be a good opportunity to explain what you think your relative would have wanted. The judge will gather all the evidence they need by speaking to the people involved, and sometimes they will get independent experts to give extra advice.
There are some useful guides on the Court of Protection Handbook website which explain what happens at a hearing.
Court of Protection: what is it like?
People have told us the idea of going to court can be stressful, complicated and expensive so it can be helpful to find out a bit more about the process. Some people have found it reassuring to see how hearings work in the Court of Protection.
“… it was very useful for me as a litigant in person in my mother’s case, to see how a hearing proceeds and the efforts of the judge to be fair and even-handed with someone presenting their own case for a family member.” (Anna, daughter of a P in a s.21A case)
If you have an upcoming hearing in the Court of Protection you can read about other peoples’ experience or even observe a real hearing to see what happens on the Open Justice Project website.
Applying to the Court of Protection
Cases can be brought to the court by relatives or attorneys, but normally it’s the NHS or local authority who will bring the case to court.
If you cannot resolve a disagreement with professionals, you can ask the lead consultant or clinical director in charge of your loved one’s care if they believe the decision should be made by the court.
It can be a complicated process, so it’s important to get legal advice.
If you cannot afford to pay for legal advice the charity Advocate may be able to find a specialist barrister to help for free. You can find out more and apply for help on their website.
If you are able to pay you can contact a solicitor directly. The solicitors below have experience with the Court of Protection: