•As noted above, P will almost invariably be joined as a party and the Official Solicitor be appointed to act as P’s litigation friend. The Official Solicitor receives sufficient central government funding to conduct (in-house) such proceedings, and is also conventionally awarded half the costs of doing so against the relevant NHS body.1An NHS Trust v D [2012] EWHC 886 (COP), [2012] COPLR 499. The Official Solicitor will often decline to act until an undertaking is given by the relevant NHS body to meet half of his costs.

•The presumption is that the application will be heard in public with suitable reporting restrictions imposed.2PD 9E para 16; see also W v M and others (reporting restrictions order) [2011] EWHC 1197 (COP), [2011] COPLR Con Vol 1206. This means that it is very likely that the applicant NHS trust will need to apply for a reporting restrictions order under the provisions of COPR r92(2): see in this regard paras 13.61 onwards. The courts are increasingly reluctant to grant anonymity to NHS trusts and the treating clinicians, save where this is necessary to protect the identity of P and their place of treatment (it is therefore likely that an NHS trust responsible for more than one hospital will be named as the chances of P being identified would be materially reduced in such a case).

•Unless the urgency of the case makes it impossible, the Official Solicitor will usually wish to obtain independent expert evidence (and will usually seek to do so on a joint basis). Questions of expert evidence are addressed further in chapter 12. The courts will place considerable weight upon the evidence of any expert(s) instructed, but – as in all other cases – will exercise independent judgment upon the questions both of P’s capacity and best interests. A good example of the latter is An NHS Trust v (1) K (2) Another Foundation Trust3[2012] EWHC 2292 (COP), [2012] COPLR 694. in which Holman J declined to follow the ‘unduly pessimistic’ evidence of the independent expert as to the risks to the patient surrounding the operation in question.

•Any decision in a serious medical treatment case (whether or not held in public) will prima facie fall to be published (subject to suitable anonymisation) in line with the President’s guidance on Transparency in the Court of Protection: publication of judgments.4[2014] EWHC B2 (COP), [2014] COPLR 78. See also paras 14.32 onwards.