2012 07 Incapacity

Wednesday 1 August 2012

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XCC v AA, BB, CC and DD (by her litigation friend the Official Solicitor) [2012] EWHC 2183 (COP) (Parker J): DD was a woman with a very significant degree of learning disability. Her parents originated from Bangladesh but had lived in the UK for many years. They and she were British citizens. In 2010, Parker J had made declarations to the effect that DD lacked the capacity to marry, had lacked capacity to marry in 2003 when a marriage ceremony between herself and AA had taken place in Bangladesh, she lacked the capacity to consent to sexual relations, to make decisions as to where she should live, or regarding her care, that it was not in her best interests to reside with, or have contact with, AA, and that it was and continued to be unlawful for AA to engage in sexual activity with DD. The Judge was asked to consider what should be the next step in relation to the marriage. She held that there is no jurisdiction within the Mental Capacity Act 2005 to make a non-recognition declaration in respect of the marriage and that it is not a personal welfare decision. However, relying on the Court of Appeal's decision in KC v Westminster City Council, she found that there is inherent jurisdiction of the High Court to make such a declaration. The inherent jurisdiction is available to capacitous but vulnerable adults who have had their will overborne and it would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults. She was satisfied that she could grant a non-recognition declaration on the specific ground that DD's consent had not been given to the marriage. She considered whether she should grant the declaration and concluded that it was not in DD's interest for the marriage to continue in form or substance. The creation and existence of the marriage were all in breach of DD's personal rights. There was no positive feature of the marriage at all for DD. It was disadvantageous to her in that it had exposed her to great risk (in the form of sexual activity to which she could not consent and the possibility of pregnancy) and because of tensions within the family which were affecting her adversely. She found that DD was domiciled in England and that there were overwhelmingly strong public policy grounds and welfare grounds not to recognise the marriage. She repeated paragraphs from her earlier judgement which had criticised the professionals involved in DD's care who had failed to report the marriage. Click here for the judgement.

A Local Authority v E (by her litigation friend the Official Solicitor), A Health Authority and E's parents (also known as Re E (Medical treatment: Anorexia (Rev 1) [2012] EWHC 1639 (COP) (Peter Jackson J): E was a 32-year old woman who suffered from extremely severe anorexia nervosa and other chronic health conditions. She was reusing to eat and taking only a small amount of water. She was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort. An urgent application had been made by the local authority, concerned that her death was imminent. The Judge found that E lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes. He acknowledged that this was a very difficult and unusual decision. E, whilst lacking capacity, was fully aware of her situation. She was not seeking death but did not want to eat or be fed and wanted to be allowed to make her own choice. The Judge had to strike a balance between the weight objectively to be given to life, and to her personal independence. E's parents did not want he to die but believed that, unless further medical intervention had a real prospect of making a difference, her wishes should be respected. He found that E had an impairment of, or a disturbance in the functioning of, the mind or brain in the form of her anorexia; she could also understand and retain information relevant to the treatment decision but there was strong evidence that her obsessive fear of weight gain made her incapable of weighing the advantages and disadvantages of eating. As a result, she lacked capacity. He found that treatment carried a very high risk to her physical health and possibility of survival. He went through the best interests check-list. Palliative care (rather than feeding) reflected E's wishes, respected her personal autonomy, spared her the risks and harrowing aspects of treatment, allowed her to die with dignity and close to home, treatment would have limited prospects of success and the doctors and her parents were sceptical about it. The factors in favour of treatment by forcible feeding were that without treatment, she would die, she would lose the chance to recover and lead a relatively normal life, there was medical opinion that she was treatable with some prospect of success and that the longer she lived, the greater the opportunity there would be for her to benefit from treatment and to revise her views about her future. He found that the right to life was not absolute, but that her life was precious. If further treatment was futile, he would not over-rule E's wishes, which were clear and real. However, there was a possibility that the treatment might succeed. The competing factors were almost exactly in equilibrium but the balance tipped in the direction of life-preserving treatment. The presumption in favour of the preservation of life was not displaced. Click here for the judgment.

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