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22.4Practice Direction (PD) 9E makes specific provision for cases involving ‘serious medical treatment’, defined for this purpose as treatment which involves providing, withdrawing or withholding treatment in circumstances where:
•(if a single treatment is proposed) there is a fine balance between its benefits and burdens and risks;
•(if there is a choice) a decision as to which treatment is finely balanced; or the treatment, procedure or investigation would be likely to involve serious consequences for the patient.
1PD 9E para 3. 22.5Serious consequences are, in turn, defined, as those which could have a serious impact on P, either from the effects of the treatment, procedure or investigation itself or its wider implications. This may include treatments, procedures or investigations which:
•cause, or may cause, serious and prolonged pain, distress or side-effects;
•have potentially major consequences for P; or
•have a serious impact on P’s future life choices.
22.6PD 9E sets
2PD 9E para 5. out certain decisions which should be regarded as serious medical treatment decisions and should be brought to the court. These are:
•decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state;
3NB, in all such cases, reference must now be made to the guidelines issued by the Royal College of Physicians in December 2013 on Prolonged disorders of consciousness, available at: www.rcplondon.ac.uk/prolonged-disorders-consciousness-national-clinical-guidelines. •cases involving organ or bone marrow donation by a person who lacks capacity to consent; and
•cases involving non-therapeutic sterilisation of a person who lacks capacity to consent.
4See also in this regard A Local Authority v K and others [2013] EWHC 242 (COP), [2013] COPLR 194. 22.7The word ‘should’ in PD 9E is ambiguous. Although there is case-law which suggest that cases falling into this category
must be brought to court,
5W v M and others [2011] EWHC 2443 (Fam), [2012] COPLR 222 at para 257 per Baker J (in relation to the proposed withdrawing of artificial nutrition and hydration from a person in a minimally conscious state). the true position is that there is no requirement of law that such cases be brought, rather that it is required as a matter of good practice to ensure that there is no doubt that the relevant clinicians are acting lawfully.
6See R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273, (2004) 7 CCLR 609 at paras 71–72. It suggested that nothing in the post- MCA case of Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] 1 AC 591, (2013) 16 CCLR 554 casts doubt upon this proposition.22.8PD 9E also gives a non-exhaustive list of examples of other decisions which should be considered serious medical treatment.
7PD 9E para 6. It does not state expressly that such decisions should be brought to court. However, case-law makes clear that at least two categories of case should come to court (again, it is suggested, as an aspect of good practice):
8Although, as noted above, as an aspect of good practice, rather than by way of a substantive obligation of law.•In respect of a proposed termination of a pregnancy in relation to a person who lacks capacity to consent to such a procedure, an application must be made where:
•there is dispute over capacity;
•the patient may regain capacity during her pregnancy;
•there is any lack of unanimity;
•the procedures under Abortion Act 1967 s1 have not been followed;
•the patient or members of her immediate family have opposed a termination; or
•there are other exceptional circumstances, including that this may be the patient’s last chance to bear a child.
9D v An NHS Trust (medical treatment: consent) [2004] 1 FLR 1110; see also Re P (abortion) [2013] EWHC 50 (COP), [2013] COPLR 405. •(It appears) the carrying out of Caesarean section operations on incapacitated patients where any degree of force of restraint is contemplated. This follows the media outcry in the case of an Italian national, Ms Pacchieri, who was detained under the Mental Health Act (MHA) 1983 while temporarily present in England and in respect of whom such an operation was authorised.
10Re AA [2012] EWHC 4378 (COP). See also NHS Trust 1 and Another v G (Practice Note) [2014] EWCOP 30, [2015] 1 WLR 1984. 22.9That a case falls within the category of serious medical treatment does not itself mean that it
has to be brought to court, unless it is one of those falling with the categories set out in the paragraphs above. In many cases, the treatment could be provided in reliance upon the defence in MCA 2005 s5 on the basis that it is reasonably considered to be in the best interests of the patient.
11See Aintree v James at paras 19–22, per Lady Hale. However, the treating NHS trust must, at the very least, consider whether an application to court is necessary if the treatment in question falls within the scope of ‘serious medical treatment’ as defined in PD 9E, and – we suggest –
must as a matter of good practice bring the matter to court in the event of dispute either between the treating clinicians as to either P’s capacity or best interests or between the treating clinicians and P’s family members.
22.10The expectation in serious medical treatment cases is that the application will be brought by the organisation providing the treatment to P. If they are not the applicant (which would be unusual), then they should be a respondent.
12PD 9E para 9. If the question is whether P should be admitted to hospital for purposes of being provided with medical treatment, then one would expect to see the relevant clinical commissioning group (CCG) (as the funding body) making the application, and that the treating hospital would either be a joint applicant or joined as a respondent.