Court of Protection and surgery for s3 patient

Hello. Can anyone please give me advice? I have a patient detained on Section 3 MHA. She is in desperate need of laser ablation for the treatment of a severe vascular ulcer. We thought under the MCA she could have the treatment as she does not have capacity and her family are in agreement with the plan. The medical team are insisting on a Court of Protection decision but this will delay the much needed procedure. The patients health is deteriorating. Thank you in advance.


I believe an independent mental capacity advocate (IMCA) is required for best interests decisions re serious medical treatment. CoP would be required in case of disagreement/contest.




Court of Protection judges are available 24/7 for urgent cases. A number of pregnancy and childbirth cases have been heard on an urgent basis, although the judge has often been critical of the late notice, given the fact that the concerns have been predicted for some considerable time. I think the decision on whether it goes to court or not will depend on a number of factors, most of which are best known to the medical team. Risk is one in particular. Also the wishes and feelings of the patient are important. If they are in agreement (not ‘consenting’ of course as they cannot consent) then that is different to if they are objecting, but even if that are in agreement with the procedure, doesn’t automatically mean that a court judgement isn’t indicated.
IMCA is not indicated if there are people available to consult (irrespective of their views). However, advocacy may nonetheless be helpful for the patient.

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Thank you. We have had several best interests meeting and the patients family are all in agreement. I am not aware of any disagreement from the professional team.

Being on a Sec 3 of the MHA would not stop for physical treatment as this is only for Mental Health Disorders. Then if patient is refusing but incapacitated, then a capacity assessment is needed. As the team has done a capacity assessment and this deemed having no capacity, then other people, under best interest will decide where he needs to go to hospital.
Two aspects here, first is being transported to another hospital (if this is the case), and staying in the medical ward. For the latter is easy, you can apply for a DOLS. No problem.
But for the former, you are going to struggle. Having no capacity means that he will go to the hospital, and if he goes willingly, that is great, but if not, you have no legal basis to force him. Here is where the Court of Protection comes into place. On the other hand, if there is imminent threat of risk of deteriorating health, and needs to be transported urgently, doctors can appeal to the use of Common Law with the team involved and making sure that all is documented to force someone into another place (even if incapacitated) without a due legal process that do not breach his right of freedom.

I would be cautious about using the ‘common law’ defence, as this is really only valid when no other lawful route is available. The MCA is clearly the appropriate way forward, and many cases have been brought to the Court of Protection, including in the early hours of the morning, to obtain authorisation for an urgent response.

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Hello, I agree with you. I think all depends on the urgency of the matter in order to avoid potential temporal or permanent physical harm (including death) due to underling physical problems which can deteriorate in a matter of minutes. I think that “Common Law” is the last resort if there is imminent risk of death and there are no other immediate legal avenue to use which will be quick enough to avoid harm.

Ok. Thank you so much everyone. We’re just waiting to hear back from the medics now. At least we can put forward a reasonable debate.

I experienced a similar situation a few years ago and here is the feedback I received from legal:

If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

Where resolution cannot be achieved within P’s own timescales proceedings should be issued. As the proposed procedure or treatment to be carried out uses a degree of force to restrain the person concerned and the restraint may go beyond the parameters and amount to a deprivation of the person’s liberty and thus constitute a deprivation of liberty.