The Legal Framework
Medical treatment disputes concerning adults typically arise under the Mental Capacity Act 2005 (MCA) either because there is a disagreement about whether the adult has capacity to make his or her own decisions, or, because the adult lacks capacity to decide and there is a dispute about his or her best interests. This means that the healthcare professionals and family members may disagree about what healthcare treatment the patient should have.
By way of background, the MCA is a statutory framework which sets out the relevant legal criteria for assessing whether or not a person lacks the mental capacity to make particular decisions and, if so, when, by whom, and what decisions can be made in their best interests. Under section 1 MCA, a person must be assumed to have mental capacity and a decision can only be made on that person’s behalf in their best interests once they have been found to lack capacity. Capacity is assessed through a two stage test under sections 2-3 MCA, which considers whether the person has a disturbance or impairment in the functioning of their mind or brain and whether or not they can understand, use or weigh, and retain information relevant to the decision.
What’s the Evidence So Far?
There is currently only limited evidence about the use of mediation to resolve medical treatment disputes. Dr Lindsey has written about mediation generally in mental capacity law and the Court of Protection, the court that deals with disputes in this area, but otherwise the data on mediation’s use is incomplete.
While the evidence is limited, there is some reference to the use of mediation in CoP case law. For example, in Reimagining the Court of Protection: Access to Justice in Mental Capacity Law, Dr Lindsey explains:
‘a review of all reported CoP cases on BAILII over a ten year time period shows that 21 out of 472 (4.45%) reported cases refer to the concept of mediation’
This includes two cases that cover health and care issues, London Borough of Brent v. NB [2017] EWCOP 34 and Imperial College Healthcare An NHS Trust v. MB & Ors [2019] EWCOP 29. While very few cases explicitly refer to mediation, we understand that more cases concerning these issues are being mediated in practice and this research seeks to gain an insight into this relatively hidden area.
