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Medical treatment consent - disputes & capacity

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.

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Medical treatment disputes

Disputes in relation to medical treatment are very important decisions, as these decisions can have huge health consequences. Disputes can be about whether a person should have a particular medical treatment, challenges to end of life decisions and decisions to withdraw life sustaining treatment.

In the circumstances of a dispute or disagreement in relation to the provision of, continuation of or withdrawal of medical treatment, an application should be made to the Court of Protection to decide which course of action is in the individual’s best interests, before any action is taken.

It is extremely important that the correct processes and procedures are followed in these types of cases, as the decisions can have significant consequences. Decisions range from challenges to proposed medical treatment, to end of life decisions and decisions to withdraw life sustaining treatment. The court can also hear urgent cases where a decision is required in an emergency/urgent situation.

Frequently asked questions about capacity and consent for medical treatment

Whether you have questions about the assessment process or are involved in a situation where someone has been assessed as not having the mental capacity to consent to medical treatment, you may find the information you’re looking for in our FAQ section below. If you don’t find the answers to your questions here get in touch with our expert team who will be happy to help you.

What is the process for assessing mental capacity for consent for medical treatment for adults?

In general, consent for medical treatment for adults will be a decision that someone will make for themselves. However, if that person has a mental impairment that might mean they are not capable of making a specific and important decision themselves in relation to medical treatment or care, they will need to be assessed to determine this by a qualified professional.

The legislation that relates to this process is the Mental Capacity Act 2005. The assessment must incorporate two stages and details of the mental capacity assessment process can be found here.

We have extensive knowledge and offer specialist legal services in this area, with our expert solicitors providing advice, guidance and representation through the process. We offer services nationally at competitive rates and legal aid is available subject to eligibility. For more information, call us on 01616 966 229 or complete our online enquiry form and a member of the team will contact you.

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