Doctors do not always need approval before acting on mental health patients – Judge

Doctors have been told they do not always need a Court of Protection judge’s approval before making decisions relating to the treatment of seriously-ill people with mental health issues.

Court of Protection judges consider issues relating to people who may lack the mental capacity to make decisions and can decide that mentally-ill people should receive treatment against their will.

Mr Justice Hayden, the second most senior Court of Protection judge in England and Wales, says doctors can sometimes decide to treat, or withdraw treatment, without litigation being launched, if rules are followed.

But he says hospital bosses who decide to make applications for rulings by Court of Protection judges should “recognise” that delay will “invariably be inimical” to a patient’s welfare.

He also says if urgent court hearings are necessary, steps must be taken to allow a patient’s relatives to participate.

Mr Justice Hayden, vice president of the Court of Protection, has aired his thoughts in guidance aimed at lawyers and published online.

“The fact that certain medical treatments are defined as ‘serious’ does not determine whether they should be subject to an application to the Court of Protection,” he says.

“Rather they indicate the need for special care and attention to the decision-making process.”

He added: “If the provisions of the Mental Capacity Act 2005 are followed, any relevant professional guidance observed and relevant guidance in the Code of Practice followed, including as to the undertaking of the decision-making process, then if there is agreement at the end of the decision-making process as to the decision-making capacity of, and best interests of the person in question, then, in principle, medical treatment may be provided to, withdrawn from or withheld in accordance with the agreement, without application to the court.”

Mr Justice Hayden said in urgent hearings of medical treatment cases ” proper arrangements” should be made for family members “to be able to participate”.

He said judges would do all they could to ensure that patients were legally represented at urgent hearings.

The judge added: “Only in a truly exceptional case would the court grant substantive relief without representation.”

Copyright (c) PA Media Ltd. 2020, All Rights Reserved. Picture (c) Nick Ansell / PA Wire.

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