The following decisions are all ‘excluded decisions’. This means that they cannot be made under the Mental Capacity Act and, as such must be made under other relevant legislation (for example adoption legislation).
|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;
Following recent case law and the withdrawal of 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 following are all situations when an application to the Court should be made, unless it is possible to;
|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 which 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.|
|A family carer or solicitor asks for personal information about someone who lacks capacity to consent to be revealed.|
|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.|
Authorisation is required so that someone can sign a legally binding contract on the incapacitated person’s behalf e.g. a tenancy agreement
Unless a decision is outlined in the guidance above, it is normally a matter that should be decided without the involvement of the Court. However, decisions about these matters can still be referred to the Court of Protection if a decision cannot be made about;
If there are existing proceedings relating to the person in the Court of Protection it may be more appropriate to;
You should seek the advice of legal support about;
When any proceedings in the Court are concluded the Judge will make a judgement setting out;
It is therefore very important that the following is decided, and clearly recorded at the point of application;
‘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’.
Urgent and interim orders are those that cannot wait for proceedings before a decision needs to be made.
The Court has powers to grant orders on an urgent or interim basis and these will be valid from the day that the Court grants them until such time as the Court declares they are no longer required.
If an order is urgent;
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;
If the person who lacks capacity (or may lack capacity) is 16 or 17 years of age you must therefore establish whether;
You should only proceed to make the application to the Court of Protection if;
Any application to the Court of Protection that you make in this situation should explain;
Only certain people have the right to apply to the Court of Protection without first seeking the Court’s permission.
Statutory bodies and organisations do not fall within this cohort and, as such permission to apply must be sought.
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;
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.
Click here to access an example of a COP24 to support a permission application.
It is always important that any written statement that you submit to the Court is;
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;
You should be notified of this outcome by legal support as soon as they receive the correspondence from the Court.