In the recent landmark Court of Protection case of AB (termination of pregnancy), Re  EWCA Civ 1215, the Court of Appeal had to decide whether it would be in the best interests of AB, a learning disabled woman, to provide the consent necessary in...
If there is any doubt as to whether a person is able to consent to medical treatment, for example due to a disability or vulnerability, then a mental capacity assessment must be undertaken before any treatment decision can be made.
If a person lacks capacity to make decisions about their medical treatment, a best interests meeting must be held with professionals and family members to try and agree on what is in the person’s best interests. The decisions must be specific to the actual medical treatment that is being proposed (for example surgery to investigate symptoms further, an amputation, hip replacement) and not a general decision that would cover any type of procedure or treatment.
Disputes about whether a certain medical treatment is in a person’s best interests may arise between family members and medical professionals and in the event of a dispute, an application can be made to the Court of Protection for the court to decide what is in their best interests. It is expected that the hospital that is proposing the treatment will make the application, but any party can bring such an application in the event of a dispute. The Court of Protection is also able to hear urgent cases where a treatment decision is required due to the circumstances of the case.