8

MCA and the Office of the Public Guardian role

Court of Protection

The Mental Capacity Act (2005) also introduced a new Court of Protection, with legal powers to approve LPAs and a duty to preside over difficult or contentious decisions regarding serious medical treatment or care. A Court Appointed Deputy for Welfare may be appointed, to work with the clinical teams, where there is no appropriate LPA and ongoing decisions are required regarding complex or contentious clinical treatments. Deputies with welfare powers are likely to be less frequent than Attorneys with these powers as the Court prefers treatment decisions to be taken by multi-disciplinary teams in conjunction with the persona and their family and friends.

Clinical decisions requiring referral to Court of Protection:

  • Proposal to withhold/withdraw clinically-assisted nutrition and hydration from patients in Prolonged Disorder of Consciousness (PDOC), where there is disagreement or contest from the person’s family or between clinicians. If there is full agreement within the clinical team, family and friends that continued treatment is not in the person’s best interest, withdrawal can be done without court involvement (An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) [2018] UKSC 46).
  • Organ or bone marrow donation by a person who lacks capacity to consent to donation.
  • Proposed sterilisation of a person who lacks capacity.
  • Cases where there is doubt or dispute about a proposed treatment being in the best interests of the person without capacity (MCA Code of practice (2007) Department for Constitutional Affairs).

If it becomes apparent that an application needs to be made to the Court of Protection, then this should be done as soon as possible with the assistance of the Trust’s legal advisors. Any such application should not cause undue delay to the treatment or care of an individual who lacks capacity. The clinical team should always act in the individual’s best interest, including making appropriate and timely referrals to other teams, organisations or the Court of Protection.