Before an Application is Made

1. Situations outside the remit of the Court of Protection

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).

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;

  1. Action should be taken as appropriate to safeguard the person from any risk of harm or abuse; and
  2. Legal advice should be sought as required to determine the appropriate course of action.

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;

  1. The proposed withholding or withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state;
  2. Cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person; and
  3. The proposed non-therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes).
However, cases must still be considered on a case by case basis and it is advisable to always seek legal advice when making a decision.

3. Situations when an Application should normally be made

The following are all situations when an application to the Court should be made, unless it is possible to;

  1. Take action to resolve disagreement; or
  2. Review what may be in the person’s Best Interests; or
  3. Employ less restrictive methods of implementing a decision.
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 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

4. Other Situations when an Application can be made

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;

  1. The person’s mental capacity;
  2. What may be in the person’s Best Interests; or
  3. The decision is particularly complex; or
  4. The decision that is made is contested by a member of the person’s family and a resolution cannot be reached.

5. Existing Proceedings

If there are existing proceedings relating to the person in the Court of Protection it may be more appropriate to;

  1. Request that the new matters to be heard are added to the existing proceedings; rather than
  2. Making a new application.

You should seek the advice of legal support about;

  1. The best course of action to take; and
  2. The forms that need to be completed.

6. Deciding the Order and/or Determination that is being sought

General guidance

When any proceedings in the Court are concluded the Judge will make a judgement setting out;

  1. Their views on the specific matters that it has been asked to consider;
  2. Their decision in regard to those determinations it has been asked to make; and
  3. Where an order has been requested, whether or not they will make that order.

It is therefore very important that the following is decided, and clearly recorded at the point of application;

  1. The specific matters that the Court is being asked to consider;
  2. The specific determinations that the Court is being asked to make; and
  3. Where an order is requested, the order that the organisation is seeking.
Case Example 1
‘The CCG seeks a determination that P has capacity to make a decision about matters relating to the medical treatment of his Parkinson’s Disease’.
Case Example 2

‘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

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;

  1. It must be clearly recorded on the application as urgent; and
  2. The rationale for the urgent order request must be clear.

7. If the Person is aged 16 or 17

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;

  1. Make decisions regarding mental capacity; or
  2. 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;

  1. There are on-going family proceedings in a family Court; or
  2. There is an existing Court Order made by a family Court; and then
  3. Notify your legal support as soon as possible; so that
  4. 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;

  1. The family Court declines to hear the case; and
  2. 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;

  1. The on-going role of the family Court; and
  2. The reasons that the family Court have provided about why they will not hear the case.

8. Seeking Permission to Apply

When permission is required

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.

Managing the process

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.

Providing evidence

In order to make a decision the Court will need the following information;

  1. The organisation’s connection to the person who lacks capacity (or may lack capacity);
  2. The reasons behind the application;
  3. The benefit to the person of the order or direction being sought; and
  4. 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.

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;

  1. Clear and concise;
  2. Well structured (the use of headings are appropriate in most cases)
  3. Relevant to the circumstances or questions to be answered;
  4. Evidence based;
  5. Signed and dated; and
  6. Submitted in a timely way.

The decision of the Court

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;

  1. Permission to apply is granted;
  2. Permission to apply is not granted;
  3. Further information is required.

You should be notified of this outcome by legal support as soon as they receive the correspondence from the Court.

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