mental capacity


Court of Protection orders continued reporting restrictions after death

27 April 2016 by

why_we_need_kidney_dialysis_1904_xIn the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment

The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.

I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act.  An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  [2015] EWCOP 80).
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“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

8 April 2014 by

bird503_mediumSurrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QCHenry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified.
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Islamic “marriage” ceremony at home declared invalid by Court of Protection

25 November 2013 by

r-SHAM-MARRIAGE-COUPLE-large570A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment

A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had

 “deliberately targeted” the respondent because of her learning difficulties and her vulnerability.

The courts would not tolerate such “gross exploitation.”

This was  an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life.
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Bipolar patient has capacity to decide to terminate pregnancy

24 May 2013 by

Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013 – read judgment

Pregnant_woman_silhouette.png

Sidney Chawatama of 1 Crown Office Row represented the husband of the patient in this case. He has nothing to do with the writing of this post. 

The patient in this case was a 37 year old highly intelligent graduate who worked in IT. For the past 8 years she presented with symptoms which were diagnosed as those of bi-polar disorder. She had been detained under compulsory or similar powers at various times in Italy, in France and here in England.

These proceedings were issued in the Court of Protection because the mother concerned was “very strongly” requesting a termination and giving her consent to it. The issue related to her capacity. Section 1(2) of the Mental Capacity Act 2005 is very clear and provides as follows: “A person must be assumed to have capacity unless it is established that he lacks capacity.” Accordingly, unless it is established, on a balance of probability, that the mother does not have capacity to make the decision that she undoubtedly has made, her autonomy as an adult to request and consent to the proposed abortion procedure is preserved.
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Contraception, capacity and coercion: when does a woman lack capacity to decide whether to use contraceptive treatment?

25 August 2010 by

A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam) – Read judgment

In the first case of its kind, the court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it.

Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

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Deprivation of liberty best interests test compatible with human rights law [updated]

23 July 2010 by

G v E and others [2010] EWCA Civ 822 – Read judgment

This post was written with the kind help of Jaime Lindsey

The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.

This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.

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Judge orders that patient be operated on against her will

3 June 2010 by

DH NHS Foundation Trust v PS (by her litigation friend, The Official Solicitor) [2010] EWHC 1217 (Fam) – Read judgment

The head of the Family Division, Sir Nicholas Wall, has ordered that a woman with learning disabilities be forced under sedation to undergo surgery in order to save her life.

This case brought to the fore the complex balance between allowing those who lack the capacity the autonomy to make decisions about how they wish to live their lives, and enabling the State to step in when such decisions are not only unwise but actually life threatening.   It treads a delicate path between a number of human rights, in particular Article 2 (right to life), Article 5 (right to liberty and security) and Article 8 (right to privacy).

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