Providing Or Withholding Medical Treatment To Patients Who Lack Capacity – When And How Do I Apply?

The Judgement of Mrs Justice Theis in the matter of Sandwell and West Birmingham Hospitals NHS Trust v CD, EF, AB, NHS Sandwell and West Birmingham CCG [2014] EWCOP 23 gave some practical advice on applications to the Court of Protection and in particular gave her thoughts on steps that should be taken before any application and on the issue of timing.

This matter concerned an application by Sandwell and West Birmingham NHS Trust ("the Trust") seeking declarations as to AB's capacity to make decisions about serious medical treatment and as to her best interests in respect of whether she should receive life sustaining treatment should such treatment become necessary. AB, a 20 year old patient who suffered from a number of medical conditions including severe learning disability and cerebral palsy resulting in very severe disability, lacked capacity to make these decisions within the meaning of the Mental Capacity Act 2005. Following her admission to the intensive care unit with pneumonia, the Trust issued an application for a declaration not to treat her because AB's treating medical team did not consider that it would be in her best interests to receive (i)invasive ventilation, (ii)cardio pulmonary resuscitation, or (iii)inotropes and renal support therapy should her condition deteriorate.

The Application was initially made by the Trust late on a Friday afternoon when the only information available to the Judge was the application, some medical notes and a two page document from the joint speciality lead in critical care medicine at the Trust. Counsel for the Trust was present but AB's parents had no representation at the hearing. An appointment had been made with a solicitor to discuss eligibility for public funding the following Monday. In the meantime, AB's mother attended the hearing by telephone while at the hospital. Further, the Official Solicitor was not in attendance as, according to the Trust, the Official Solicitor had indicated that he would need an Order from the Court before he could become involved.

The Judge, Mrs Justice Theis, considered that AB needed her own representation and needed to be joined as a party. She therefore contacted the Official Solicitor who arranged for Counsel to attend when the hearing was re-commenced later that evening. It was not possible to secure representation for the parents in the short time available. By this time, as AB's condition was not as critical and there was a window available for when...