Court of Protection – Part 2
So what other cases have the Court of Protection decided recently. Remember, they are the Court that has authority to make decisions about people who lack capacity. They can make financial and health decisions. But if someone doesn’t lack capacity, they lack jurisdiction, so if as part of the Court case, there is an issue regarding capacity and they are found to have the necessary capacity, the case collapses, due to a lack of jurisdiction. When this happens the matter is then just part of real life everyday world where people make decisions for themselves and sometimes those decisions are amazing and incredibly wise and sometimes they are not!!
Under normal circumstances, the cases are anonymised, however this can lead to a misunderstanding of what the Court does and sometimes half information is worse than none.
There was a case in 2009 Independent News and Media Ltd and Others v A and the case was about a very talented, but disabled young man, who had been in the newspapers regarding his musical talents. He was totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder and meant that he needed to be cared for. He had however taught himself to play the piano and had gone on to become an extraordinary gifted musician. Because he was famous anyway, some of the information about his case was in the public domain anyway, so the Court decided that it would allow the media to attend the proceedings about his case and they could publish but only to the following extent: 1 – information that was already in the public domain and 2 – that which answers the legitimate questions of a reasonable person who knows what is presently in the public domain. The Court were trying to demonstrate to the public at large the important work that they do.
In a case in May 2013, which was an emergency case, a woman 23 weeks pregnant went to Court, as she wanted to terminate her pregnancy and her husband and family and the doctors caring form her didn’t think she was able to make this decision. She was bi-polar and had been sectioned a number of times in the previous few years, she suffered from drug-induced schizophrenia and she has continued to use cannabis heavily while pregnant, including at the secure mental health facility where she was detained at the time of the hearing. She felt that she did not have the support of her husband and did not want to become a single mother.
When asked what she would do if the doctors forced her to carry the baby to full term, she said: “I would seek to kill myself and the baby.” She was allowed to speak at her hearing and was clear and lucid, she interrupted witnesses, but only to correct them. The Judge made the decision that she “does have capacity to make a decision to request the consent to end her current pregnancy”. Since she was found to have capacity, the case then collapsed and she was able to undergo the abortion she wanted.
In January 2013 the Court made another decision around a pregnancy. The woman involved has a severe learning difficulty and was 18 weeks pregnant, She suffers from sickle cell disease and had a series of strokes when she was young, which left her mentally impaired. The Judge made the important distinction that even though she may lack acpaity to take part in these proceedings, she did not necessarily lack capacity about all aspects of her life, including about her sexual activity and the “continuation or termination of pregnancy”. He went on to say: ‘My instincts are that (her limited mental function) has nothing to do with the issue of whether a pregnancy should continue simply because once the child is born, if the mother doesn’t have the ability to care for a child, society has perfectly adequate processes to deal with that”. His decision was the same as the later May case, that she had capacity to make the decision to terminate the pregnancy or not and in this case, she decided not to terminate.
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