mental capacity
25 November 2013 by Rosalind English
A 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.
Continue reading →
Like this:
Like Loading...
3 November 2013 by Kate Beattie
Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary
The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005. The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.
The case concerned best interests decisions in the case of a patient lacking capacity. The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator.
Continue reading →
Like this:
Like Loading...
24 May 2013 by Rosalind English
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013 – read judgment
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.
Continue reading →
Like this:
Like Loading...
12 October 2012 by Rosalind English
Wednesday’s debate on current key topics in the Court of Protection was a hard-hitting discussion on matters which elicit strong views, such as voluntary euthanasia, assisted suicide, the role of “dignity” and “sanctity of life”, and whether the latter two principles can ever be reconciled.
The fact that these are not essentially legal issues was underscored by the inclusion of ethics philosopher on the interventionist panel, Professor Anthony Grayling, who fielded the questions put to him alongside Philip Havers QC and Leigh Day solicitor Richard Stein. A video of the event will shortly be available on the 1 Crown Office Row website so I shall try to refrain from any spoilers, but here is a brief trailer to whet the appetite for a full recapitulation.
The evening started with a consideration of the Nicklinson and Martin cases, on voluntary euthanasia and assisted suicide respectively. There were a number of questions put to the panel which essentially rolled up into this:
Should voluntary euthanasia be a possible defence to murder, or can we justify action with a primary purpose of killing a person on the grounds of preventing that person’s harm or suffering?
The panel was broadly in agreement that it should. Richard Stein observed that the argument that there can never be adequate safeguards to protect the vulnerable is being used as a “smokescreen”, and, equally, the notion that disabled people cannot exercise their free will to die because it reduces the value of disabled lives is a “hugely patronising” one.
Continue reading →
Like this:
Like Loading...
10 October 2012 by Rosalind English
R.P. and others v United Kingdom (9 October 2012) – read judgment
The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.
The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether
the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court.
Continue reading →
Like this:
Like Loading...
6 April 2012 by Richard Mumford
DL v A Local Authority & Others [2012] EWCA Civ 253 – Read judgment
Where adults have capacity under the Mental Capacity Act 2005 (MCA 2005), does the “great safety net” of the High Court’s inherent jurisdiction still exist to guard them from the effect on their decision making of undue influence, coercion, duress etc? In its judgment handed down on 28 March 2012, the Court of Appeal confirmed that it does.
DL proceeded in the High Court and the Court of Appeal on assumed (as opposed to agreed) facts, many if not all of which were contested by the appellant. For the court’s purposes however, it was assumed that DL, a man in his 50s who lived with his mother and father (90 and 85 respectively), had behaved aggressively towards his parents, physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes. The Court of Appeal’s judgment uses the term “elder abuse” for such a situation.
Continue reading →
Like this:
Like Loading...
25 August 2010 by Caroline Cross
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.
Continue reading →
Like this:
Like Loading...
23 July 2010 by Isabel McArdle
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.
Continue reading →
Like this:
Like Loading...
3 June 2010 by Elspeth Wrigley
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).
Continue reading →
Like this:
Like Loading...
28 April 2010 by Elspeth Wrigley
A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS [2010] EWCA Civ 343 – Read judgment
This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection. The Lord Chief Justice has refused the appeal.
The case was unconventional, largely because of A’s own situation. A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care. Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’.
Continue reading →
Like this:
Like Loading...
A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment
This blog is run by
Recent comments