Decision making in respect of health and welfare

Welfare and health decisions

The Court of Protection (the court) has the power under section 16 of the Mental Capacity Act 2005 (MCA 2005) to make a decision or decisions as to the personal welfare of a person lacking the capacity (P) to take the decision for themselves. The court also has the power to appoint a deputy to make the decision (see Deputies—Appointment, duties and powers—overview for further details), although health and welfare deputies are only relatively rarely appointed.

Alongside the powers set out above, the court also has the power to make a declaration as to the lawfulness or otherwise of any act done or yet to be done in relation to P to make the relevant decision. For these purposes, an 'act’ includes an omission and a course of conduct.

As a very general rule, questions relating to health matters are more usually raised by way of applications for declarations rather than for decisions. Such declarations are most commonly sought where the treating clinicians need confirmation as to whether it is lawful to provide or withhold treatment