Whether PB had capacity to litigate.
Held: Hayden J gave guidance as to the general approach to be taken by the court when determining an issue of capacity: ‘i. The obligation of this Court to protect P is not confined to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P’s autonomy;
ii. The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection;
iii. Whatever factual similarities may arise in the case law, the Court will always be concerned to evaluate the particular decision faced by the individual (P) in every case. The framework of the Mental Capacity Act 2005 establishes a uniquely fact sensitive jurisdiction;
iv. The presumption of capacity is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis;
v. The criteria for assessing capacity should be established on a realistic evaluation of what is required to understand the ambit of a particular decision by the individual in focus. The bar should never be set unnecessarily high. The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which is sensitive to the particular circumstances of the case and the individual involved, see London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27. The professional instinct to achieve that which is objectively in P’s best interests should never influence the formulation of the criteria on which capacity is assessed;
vi. It follows from the above that the weight to be given to P’s expressed wishes and feelings will inevitably vary from case to case.’
Judges:
Hayden J, VP CoP
Citations:
[2020] EWCOP 34, [2020] 4 WLR 94, [2020] WLR(D) 392
Links:
Jurisdiction:
England and Wales
Citing:
Cited – London Borough of Tower Hamlets v NB (Consent to Sex) CoP 16-Jul-2019
The Court considered the capacity of the patient to consent to sexual relations.
Held: The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which . .
Cited by:
Cited – AMDC v AG and Another CoP 18-Nov-2020
Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the . .
Lists of cited by and citing cases may be incomplete.
Health
Updated: 27 April 2022; Ref: scu.655034
