The Official Solicitor is a litigation friend of last resort. If the person who lacks capacity (‘P’) is a party to the proceedings the Official Solicitor may act as ‘P’’s litigation friend of, if so appointed by the court. He may also act as advocate to the court if invited to do so by the court.

Some healthcare matters are so serious that they must be brought to the court for a decision, for example

• applications to withhold or withdraw artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state
• application for the non-therapeutic sterilisation of a person who lacks capacity to consent
• application involving organ or bone marrow donation by a person who lacks capacity to consent

Other cases involving serious medical treatment may be brought to court if there is serious doubt or disagreement about whether a particular treatment will be in P’s best interests (see PD 9E for further examples).

Serious medical treatment cases must be heard by a judge of the court who has been nominated as such by virtue of section 46(2)(a) to (c) of the Act (i.e. the President of the Court of Protection, the chancellor or a puisne judge of the High Court).PD 12A

Applications may also be made in a wide range of other healthcare and welfare disputes, usually in respect of residence and contact matters, when there is a serious justiciable issue requiring a decision by the court.

A number of practice directions have been issued in relation to the Mental Capacity Act 2005. These can be found on the Judiciary website.