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 interim guardianship order had been made by the Sheriff. When the sisters made the current application for an order, the now guardian Scottish local council said that she was now habitually resident in Scotland and that the present court had no jurisdiction.
Held: The matter was governed by section 83 of the 2005 which incorporated the 2000 Convention.
Sir James Munby P
[2013] EWHC 3932 (COP), [2013] EWCOP 3932, [2013] WLR(D) 495, [2014] COPLR 62, [2014] 1 Fam 197, [2014] 3 WLR 453, [2014] WTLR 337
Bailii, WLRD
Mental Capacity Act 2005 63, 2000 Hague Convention on the International Protection of Adults
England and Wales
Citing:
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
Cited – Re MN (Recognition and Enforcement of Foreign Protective Measures) FD 2010
An elderly woman, MN, habitually resident in California, had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her.
Cited – G v E (Deputyship and Litigation Friend) CoP 11-Oct-2010
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 . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited by:
Cited – The Health Service Executive of Ireland v PA and Others CoP 3-Jun-2015
hsen_paCoP201506
The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an . .
Lists of cited by and citing cases may be incomplete.
Health, Scotland, Jurisdiction
Leading Case
Updated: 02 November 2021; Ref: scu.518978
