Practice Note (Official Solicitor: Declaratory Proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Year | 2001 |
| Date | 2001 |
| Court | Court of Appeal (Civil Division) |
Practice note – Official Solicitor – Declaratory proceedings – Medical and welfare decisions for adults who lack capacity.
[1] This practice note supersedes Practice Note (Official solicitor: sterilization) [1996] 3 FCR 95, [1996] 2 FLR 111 and Practice Note (Official Solicitor: vegetative state) [1996] 3 FCR 606, [1996] 2 FLR 375. It combines the guidance given in those earlier practice notes, and extends it to a wider range of medical and welfare disputes leading to litigation. This practice note deals only with adults who lack capacity. Medical treatment or welfare disputes about children will be dealt with under the Children Act 1989 or the inherent jurisdiction in relation to children (see Practice Note (Official Solicitor: Appointment in Family Proceedings) [2001] 2 FCR 566, [2001] 2 FLR 155 and CAFCASS Practice Note (Officers of CAFCASS Legal Services and Special Casework: Appointment in Family Proceedings) [2001] 2 FCR 562, [2001] 2 FLR 151).
Jurisdiction[2] The High Court has jurisdiction to make declarations as to the best interests of an adult who lacks decision-making capacity. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court. It has been exercised in relation to a range of medical treatment issues, in particular sterilisation operations and the continuance of artificial nutrition and hydration. It has also been exercised in relation to residence and contact issues. The jurisdiction is comprehensively reviewed and analysed in Re F (adult: court’s jurisdiction) [2000] 3 FCR 30, [2001] Fam 38, [2000] 2 FLR 512.
The need for court involvement[3] Case law has established two categories of case that will in virtually all cases require the prior sanction of a High Court judge. The first is sterilisation of a person (whether a child or an adult) who cannot consent to the operation: Re B (a minor) (wardship: sterilisation) [1988] AC 199, [1987] 2 All ER 206, [1987] 2 FLR 314 and Re F (mental patient: sterilisation) [1990] 2 AC 1, [1989] 2 All ER 545, [1989] 2 FLR 376. The second is the discontinuance of artificial nutrition and hydration for a patient in a vegetative state: Airedale NHS Trust v Bland[1994] 1 FCR 485 at 500, [1993] AC 789 at 805. Further guidance about sterilisation and vegetative state cases is given below. In all other cases, doctors and carers should seek advice from their own lawyers about the need to apply to the court. In the Official Solicitor’s view, applications should be made where there are disputes or difficulties as to either the patient’s capacity or the patient’s best interests. Guidelines were handed down by the Court of Appeal in St
George’s Healthcare NHS Trust v S; R v Collins and Ors, ex p S[1998] 2 FCR 685 at 721–724, [1999] Fam 26 at 62–65, [1998] 2 FLR 728 at 758–760. It was stressed in that case that a declaration made without notice would be ineffective and ought not to be made.
The application[4] Applications should be made to the Family Division of the High Court (principal or district registry). The proceedings are not, however, ‘family proceedings’ for the purposes of Civil Procedure Rules 1998, r 2.1(2). The Civil Procedure Rules will therefore apply.
The claim[5] In the Official Solicitor’s view, the Pt 8 alternative procedure is the more appropriate and a Pt 8 claim form should be used. The claimant should file all evidence with the claim form. The Official Solicitor is unlikely to be in a position to file all his evidence with his acknowledgment of service. A directions hearing should therefore be fixed when the claim form is issued.
[6] The relief sought should be declarations that (see appendices below for suggested wording in sterilisation and PVS cases):
The evidence(1) [the patient] lacks capacity to make a decision about º [specify treatment or welfare decision at issue, eg ‘having a kidney transplant’ or ‘where to live’]. (2) It is [or is not] in the existing circumstances in the best interests of [the patient] for º [specify treatment or other issue, eg ‘him to undergo below-knee amputation of his left leg’ or ‘her to have contact with the claimant for at least 2 hours each week’].
[7] The claimant must adduce evidence going to both capacity and best interests.
(1) CapacityThe court has no jurisdiction unless it is established that the patient is incapable of making a decision about the matter in issue. The test of capacity to consent to or refuse treatment is set out in Re MB (an adult) (medical treatment) [1997] 2 FCR 541 at 553–554, [1997] 2 FLR 426 at 437. In the Official Solicitor’s view, this test can be used for a wide range of decisions. Evidence from a psychiatrist or psychologist who has assessed the patient applying the Re MB test to the particular decision in question is generally required. It follows from the terms of the Re MB test that global psychometric test results are unlikely to be relevant. The Official Solicitor’s experience is that references to the outdated and discredited concept of ‘mental age’ are of no assistance at all. It is important for the expert assessing capacity to advise whether the patient is likely to develop capacity to make...
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