Under the Mental Capacity Act 2005, the UK established the Court of Protection. This court was given the power to decide on medical treatments for incapacitated adults.
Mr Justice Baker recently delivered a speech on the role of the Court of Protection, addressing whether judges are the right people to decide such issues.
Here are some excerpts:
“I certainly would not wish to retain the obligation to apply to court indefinitely. The time may come when applications to the court are unnecessary save where there is a dispute.”
“But for my part, I do not believe that we have yet got to that point. When the House of Lords in Bland predicted that the time would come when applications would no longer be required as a matter of routine, their Lordships anticipated that a body of experience and practice would be built up.”
“But as I have, I hope, demonstrated above, both medical science and the law are still evolving. Until such time as we have greater clarity and understanding about the disorders of consciousness, and about the legal and ethical principles to be applied, there remains a need for independent oversight.”
“At present that oversight is provided by the twenty High Court Judges of the Family Division who sit in the Court of Protection. The task could, I suppose, be passed on to some other body, perhaps a panel of specialists who might include doctors, ethicists, lay people as well as lawyers. I doubt, however, whether there is much appetite for a reform of that nature.”
“As a result, the outcome of such cases was usually, if not invariably, the same. Once the court was satisfied that the patient was in a VS, with no prospect of recovery, treatment was regarded as “futile” and it followed that no process of weighing best interests was necessary or appropriate.”
“In recent years, however, developments in law and medicine have led lawyers, doctors, academics and others to challenge this approach. The passing of the MCA, and the identification of best interests as the key principle . . . led some to question whether a process that, in effect, short- circuited any such analysis by labeling the patient’s condition as “futile” was appropriate.”