The Court of Protection

The Court of Protection is a court that has jurisdiction to decide all matters relating to the Mental Capacity Act and to make decisions about what is in the Best Interests of a young person (from the age of 16) who lacks capacity with regard to their:

• Personal welfare; and/or
• Property and Affairs.

The following decisions are all 'excluded decisions'. This means that they cannot be made under the Mental Capacity Act and, as such must be made under other relevant legislation (for example adoption legislation).

If a young person is found to lack capacity to make any of these decisions;

1. Action should be taken as appropriate to safeguard the young person from any risk of harm or abuse; and
2. Legal advice should be sought as required to determine the appropriate course of action.

Following recent case law and the withdrawal of Practice Direction 9E on serious medical treatment there is no longer a requirement to take the following matters to the Court of Protections without exception;

1. The proposed withholding or withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state;
2. Cases where it is proposed that a young person who lacks capacity to consent should donate an organ or bone marrow to another person; and
3. The proposed non-therapeutic sterilisation of a young person who lacks capacity to consent (for example, for contraceptive purposes).

However, cases must still be considered on a case by case basis and it is advisable to always seek legal advice when making a decision.

To prevent the need for the involvement of multiple Courts, the Mental Capacity Act gives permission for a Family Court which is already involved in family proceedings to:

• Make decisions regarding mental capacity; or
• Transfer cases about mental capacity to the Court of Protection.

If the young person who lacks capacity (or may lack capacity) is 16 or 17 years of age you must therefore establish whether:

• There are ongoing family proceedings in a Family Court; or
• There is an existing court order made by a Family Court.

You should only proceed to make the application to the Court of Protection if:

• The Family Court declines to hear the case; and
• The Family Court does itself not transfer the case to the Court of Protection.

If there are already existing proceedings relating to the young person in the Court of Protection it may be more appropriate to request that the new matters to be heard are added to the existing proceedings rather than making a new application.

Parent Responsibility and MCA

Parental Responsibility refers to the ‘rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child’, (Section 3 Children Act 1989).

Parental Responsibility lasts until the young person (‘child’ under Children Act 1989) is 18.

However If the young person is unable to consent to the confinement it will not be possible for the young person’s parents to consent to the confinement on their child’s behalf. Accordingly, the young person will be deprived of their liberty and so the Mental Capacity Act applies. 

The following are all situations when an application to the Court should be made, unless it is possible to:

• Take action to resolve disagreement; or
• Review what may be in the young person’s Best Interests; or
• Employ less restrictive methods of implementing a decision.

Unless a decision is outlined in the guidance above, it is normally a matter that should be decided without the involvement of the Court.  However, decisions about these matters can still be referred to the Court of Protection if a decision cannot be made about:

• The young person’s mental capacity;
• What may be in the young person’s Best Interests; or
• The decision is particularly complex; or
• The decision that is made is contested by a member of the young person’s family and a resolution cannot be reached.