2010 10 Incapacity

Monday 1 November 2010

Share This Page

Email This Page

RT v LT and a local authority[2010] EWHC 1910 Fam (Sir Nichols Wall, President): on the evidence a 23-year-old woman lacked the capacity under the Mental Capacity Act 2005 to decide where she should live and what contact she should have with members of her family. The President said: “I basically agree …… that what we now have is the Act (as amended) and the essential judicial task is to apply the plain words of the Statute to the facts of the case before the court. On the facts of this case, reference to authority is otiose ………….. and there is no need to look anywhere else. The Court of Protection is, rightly, generating a great deal of work, much of it very difficult. I have not found this case easy. I therefore agree ……….. that, wherever possible, the plain words of the Act should be directly applied to the facts of the case in hand, and that complicating factors should, if possible, be avoided ……... That said, there will be cases in which it may be necessary to look at pre- or even post Act authority on the question of capacity. One example relates to the field of sexual relations. Click here for the transcript.

G v E and a local authority[2010] EWCA Civ 822 (Sir Nicholas Wall, President, Thorpe LJ, Hedley J): in relation to deprivation of liberty cases involving persons lacking capacity, the Court of Protection had correctly ruled that Article 5 of the European Convention on Human Rights 1950 did not create threshold conditions which had to be satisfied before it was open to the court to consider what was in the individual's best interests. The Mental Capacity Act 2005 plainly embraced the principles set out in Article 5 and the Article 5 safeguards were reflected in the 2005 Act regime: there was no need additionally for the Winterwerp criteria to be satisfied. Click here for the transcript.

A local authority v A [2010] EWHC 1549 Fam (Bodey J): when considering whether a patient with a learning disability had capacity to decide whether to use contraception, it was not appropriate to consider her understanding of what bringing up a child would be like, no opinion should be attempted as to how she would be likely to get on at it, and it should not be considered whether any child would be removed from her care. The court set out the appropriate test to be applied in such circumstances: “…. the test for capacity should be so applied as to ascertain the woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment (“the proximate medical issues” ……….), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each. I do not consider that questions need be asked as to the woman’s understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care. Click here for the transcript.

DH NHS Foundation Trust v PS [2010] EWHC 1217 Fam (Sir Nicholas Wall, President): the court authorised an NHS trust to use force, if necessary, to sedate and convey a patient to hospital to ensure that she underwent necessary and potentially life-saving surgery in circumstances where she not only lacked capacity under the Mental Capacity Act 2005 but suffered from phobias of hospitals and needles. Click here for the transcript.

In the matter of A v a local authority [2010] EWHC 978 Fam (Munby J): the court gave guidance on the scope of a local authority's positive obligations when it knew or ought to have known that a vulnerable child or adult was subject to restrictions on their liberty by a private individual, albeit for the purpose of their welfare and best interests, that arguably gave rise to a deprivation of liberty, contrary to Article 5 of the European Convention on Human Rights 1950: see the Stephen Knafler QC’s practice note on this case for further analysis. Click here for the transcript.

A v Independent News & Media Ltd [2010] EWCA Civ 343 (Lord Judge LCJ, Lord Neuberger of Abbotsbury MR, Sir Mark Potter (President)): on an application by media organisations to be granted access to a hearing in the Court of Protection involving a man with severe learning difficulties, the judge had been right to order that designated representatives of the media should be allowed to attend the hearing and thereafter apply to the judge for authorisation to enable them to publish disclosed information. Click here for the transcript.

We are top ranked by independent legal directories and consistently win awards

+ View more awards