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Serious medical treatment: Court of Protection emphasises need for no delay

The Court of Protection has sent a strong reminder of the need for Applications for serious medical treatment, to be issued without delay, where it is known that serious medical treatment is likely to be required and an application to the Court of Protection would need to be made.

In the matter of the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and Dorset Healthcare University NHS Foundation Trust – v – SE (By her Litigation Friend, the official solicitor) (2018) EWCOP 45, Mrs Justice Theis was asked to consider an application for the proposed amputation of a patient’s leg.

Mrs Justice Theis was critical of the Applicant’s delay in bringing the application which required the matter to be determined in a matter of hours.  The application could and should have been brought 2 weeks beforehand.

The Trust had attempted to deal with the matter by way of a safeguarding referral to the Local Authority but it was soon realised that the correct course of action was to issue an application to the court.

The Court was told that the Trust had insufficient access to appropriate legal advice to enable the necessary steps to take place to ensure that the family had been put on proper notice of the application (it is a strict requirement that any person who is reasonably believed to have an interest in the welfare of a patient, is put on notice).

The Court was critical that the correct procedural route was not followed by the applicant, and that this had led to the need for a hearing in the urgent applications Court, the day following the application being filed.

In addition, the Court was concerned that it appeared that it was not until the point in which an application was made that a detailed written care plan had been put in place to set out the detail of what was to be proposed on the day of the procedure, to ensure that the procedure would go ahead with minimal distress.  It is said that the lack of detailed care plan was one of the reasons why the family had concerns regarding the proposed treatment, given the lack of understanding about precisely what was being proposed.

In considering the application, the Court had to consider Section 4 Mental Capacity Act 2005 to determine whether the proposed treatment was in the patient’s best interest.  As set out in the case of Aintree University Hospital NHS Foundation Trust – v- James (2013) UKSC 67, the Court has to look at welfare in the widest sense and not just medical factors.  It is recommended that a balance sheet is used to weigh up the risks and benefits of the proposed treatment to the patient which is also to encompass social and psychological factors as opposed to purely medical benefits alone.

The Court made an order authorising the proposed treatment. The Court was disappointed to note that it was only with the assistance of the Official Solicitor that the family were able to get sufficient detail in relation to the care, pre-operative and post-operative plan and sufficient explanation of what alternatives could be explored and why any delay in pursuing those alternatives outweighed any benefit that could be gained.


Organisations that care for patients who lack capacity and may require serious medical treatment should consider this judgement carefully and ensure that members of staff are aware of when an application to the Court of Protection is likely, and who they can contact in order to obtain advice to ensure that the correct procedure is followed.

Clyde & Co. LLP has a team of experienced health care lawyers who are available to provide advice on matters concerning serious medical treatment and is able to assist any applicants in ensuring the correct procedure is followed to ensure time escalation and provision of appropriate advice for patients and families. Our lawyers are available direct 24/7 on a dedicated hotline.

If you have any questions or comments in relation to this article please contact

Claire Petts
Partner, Clyde & Co LLP


Adam Dickinson
Associate, Clyde & Co LLP

Clyde & Co LLP and Premium Medical Protection Ltd accept no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2020

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