The Court of Protection

Published: 3rd Mar 2016

The Court of Protection is a court in England and Wales that can make decisions on behalf of people who lack the capacity to make their own decisions.

This might be because they have a mental illness, dementia or brain damage, for example.

How does the Court judge that someone lacks capacity to make their own decisions?

The law sets a test with four parts to judge whether someone is unable, because of an “impairment” or “disturbance” in the functioning of their mind or brain, to make a particular decision for themselves. The Court has to check that they:

  • understand the information relevant to the decision
  • retain that information
  • use and weigh the information as part of the decision making process
  • communicate the decision

What kind of decisions does the Court usually make?

The Court mostly deals with decisions about a person’s welfare, property or medical treatment. It can make the decisions itself or it can give the power to someone else (a ‘deputy’) to do so.

A deputy will often be a family member, but doesn’t have to be.

How does the Court decide what decisions to take?

When making a decision for someone who lacks capacity, the Court is supposed to act in their best interests.

This isn't the same as deciding what the person would have wanted, but it factors in what her wishes were when she had capacity.

It also includes considering the views of the person’s close family or carers.

Who can go to the Court of Protection?

Anyone can apply to the Court on behalf of someone who lacks capacity or who they think lacks capacity. Often it will be a family member, an NHS trust or a council.

When can the Court deprive someone of their liberty?

The Court deals with a lot of cases involving people lacking capacity who are placed in hospitals or care homes.

There are safeguards on doing this because of human rights law, which guarantees everyone the right to liberty and security.

Someone is “deprived of their liberty” if they're under continuous supervision and control, and not free to leave—even if they don’t object and are living comfortably.

So hospitals and care homes increasingly have to make sure that they get independent checks on whether patients or residents lack capacity and that it’s in their best interests to stay where they are.

These decisions can be challenged at the Court.

Someone may also be deprived of their liberty to give them “life-sustaining treatment” or to prevent their condition seriously worsening while the Court is still deciding.

Why has the Court of Protection been criticised for being secretive?

The Court is usually closed to the public and the media. This is to protect the privacy of the people involved. Its decisions are usually made public later, with names blanked out.

A new six-month pilot scheme has begun which tries to make the Court’s activities more transparent.

Under the pilot, the general rule is that hearings will be in public, but the names of the people involved still can’t be published.

The lady who lost her “sparkle”

One of the areas of controversy which the Court of Protection deals with is the dividing line between unusual behaviour and mental incapacity.

The law doesn’t say anything about the former, whereas the latter allows the state to step in to make decisions on someone’s behalf.  

This was the issue in a widely reported case about a lady, known as C, who wanted to die. She gave as one reason the fact that she had grown old and lost her “sparkle”, or what her daughter described as “her expensive, material and looks-orientated social life”.

King’s College Hospital asked the Court of Protection to declare that C had no capacity to refuse medical treatment, and make an order that she be treated for fatal kidney damage.

As one lawyer commenting on the case put it, “the life that C could live after treatment would not be considered by 99.9% of the population to be ‘intolerable’”.

Mr Justice MacDonald said that

“Where a patient refuses life-saving medical treatment the court is only entitled to intervene in circumstances where the court is satisfied that the patient does not have the mental capacity to decide whether or not to accept or refuse such treatment”.

Two psychiatrists gave evidence that C wasn’t able to use and weigh the information she’d been given about getting better with treatment. Another disagreed.

So did the judge. He decided that C had the capacity to make the decision, even though

“others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity… this court has no jurisdiction to interfere with the decision making process”.

Lawyers say that the case was misreported as being about a “right to die”, when it was actually about refusing medical treatment which is different from assisted suicide.


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