Court Of Protection – Life Or Death Decisions

The Court of Protection is concerned with individuals who lack the capacity to make certain decisions for themselves. The Court of Protection must be consulted in circumstances where the Protected Party has no attorney or deputy to act for them, and/or when the decision in question is beyond the powers the attorney or deputy may have.

The Court must decide what is in the Protected Party’s best interests when making decisions on their behalf.

The types of decisions considered by the Court of Protection range significantly and can include financial matters, such as the expenditure or management of the Protected Party’s monies, or matters concerning the Protected Party’s health and welfare, such as their place of residence, contact with others and any decisions regarding a person’s care, including care plans which could include end of life treatment and even decisions on whether life-sustaining treatment should be administered/should continue. When reaching a decision, the Court of Protection will weigh up the information before them in order to reach a judgment on what is considered to be in the Protected Party’s best interests.

A person will be deemed to lack capacity when they are unable to make a decision themselves because they are unable to:

The Mental Capacity Act 2005 confirms there is an assumption that a person has capacity unless proven otherwise and even if the Protected Party lacks capacity, every effort should be made to assist them in reaching their own decision where possible. Whether a person has capacity is specific to the matter at hand so it may be possible where a person is deemed to have the capacity to manage their own day-to-day finances but not make decisions regarding their care as this can be more complex.

A common theme of cases brought before the Court of Protection concerns individuals who are deemed to lack capacity, as they are unable to communicate their decision, for example, a person in a coma. This was seen recently in the case of Hillingdon Hospitals NHS Foundation Trust v IN & Ors.

Hillingdon Hospitals NHS Foundation Trust v IN & Ors [2023] EWCOP 32

Case background

In this case, the Court of Protection was required to decide whether or not the Protected Party’s treatment should be terminated which would have inevitably led to the Protected Party’s death. The Protected Party had been in a coma for over six months and was reliant on assisted nutrition. It was believed the brain damage the Protected Party suffered was irreversible and would likely cause a permanent coma.

The NHS applied to the Court of Protection for the Protected Party’s assisted nutrition to be ended, which would have eventually led to the death of the Protected Party. The NHS submitted it was not in the Protected Party’s best interests to remain in a supported coma and the prospects of recovery, combined with the degree of recovery, outweighed the preservation of life.

The Protected Party’s family did not dispute that position but sought treatment was not withdrawn due to the Protected Party’s religious beliefs. Whilst the family’s views were helpful in determining what the Protected Party’s wishes would have been, this was only one of a number of factors that the Court was required to consider. In the end, the Court held that the treatment should end as it was not seen to be in the Protected Party’s best interests for it to continue when the prognosis was so bleak.

This case demonstrates the severity of decisions the Court of Protection may be required to make. The decision here ultimately considered whether or not the Protected Party would be kept alive or allowed to pass without the intervention of further treatment.