Baker J considered the common law doctrine of necessity as it applied to the medical treatment of adults without mental capacity and the 2005 Act.
Held: As to section 5: ‘These provisions do not amount to a general authority to act on behalf of P. Rather, they merely provide a defence in the event that an action carried out for P is subsequently challenged. In this respect, the statutory provisions are similar to the previous law which was derived not from statute but from common law under the so-called ‘principle of necessity’: see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1. Prior to the passing of the MCA, the Law Commission in its report entitled ‘Mental Incapacity’ (Law Com no. 231) had proposed that there should be a ‘general authority’ providing legal authorisation for acts connected with the care of P, provided such acts were reasonable in the circumstances. The Law Commission’s draft bill included provision for such a ‘general authority’. In the event, following criticism from various quarters, the ‘general authority’ was not included in the MCA as ultimately passed, and instead the law is cast in section 5 as set out above in the form of a defence.’
Baker J
[2010] EWCOP 2512, [2010] COPLR Con Vol 470
Bailii
Mental Capacity Act 2005
Cited by:
See Also – G v E CoP 11-Oct-2010
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Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Updated: 03 December 2021; Ref: scu.524782