For all site updates and news
Simply fill out your email address below
We have some very ambitious projects help where you feel led.
By Martin Beckford | Telegraph | May 28, 2010
The Court of Protection, which until earlier this month held all its cases behind closed doors, has the power of life or death over those judged to be incapable of making decisions about their health.
It can even impose “experimental” treatments on patients without their consent and choose how to resolve an “ethical dilemma in an untested area”.
There are growing fears that the Court, whose jurisdiction was expanded greatly by Labour, has been handed sweeping powers without adequate scrutiny and openness.
In previous decades, health authorities and councils were able to ask judges to rule that people in their care with severe learning difficulties should undergo sterilisation or have terminations if they believed it was in their best interests.
The courts were asked to decide on the right course of action as a doctor could face accusations of negligence if they failed to treat a patient who could not give consent, or assault if they acted without permission.
The High Court cases, fraught with ethical problems, were held in public and could be reported by media.
Under the Mental Capacity Act 2005 the Court of Protection – which previously only dealt with the financial affairs of those judged by psychiatrists to lack mental capacity – was given the power to decide on medical treatments.
This move was intended to close a loophole identified in the earlier cases, in that it was unclear if any body or individual had the authority to take healthcare decisions for incapacitated adults.
But it was made clear that cases dealt with under the new powers would not be open to scrutiny, departing from the general principle of open justice held by other courts.
The Court of Protection Rules 2007 state: “The general rule is that a hearing is to be held in private.”
Separate documents published by HM Courts Service spell out that the Court of Protection is able to take life-or-death decisions on behalf of those lacking mental capacity, including withdrawing treatment if they are in a coma or preventing them from having babies through abortion or sterilisation.
A list of “matters which should be brought to the court” includes: “decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state” and “cases involving non-therapeutic sterilisation of a person who lacks capacity to consent”.
A further list of “serious medical treatment” the Court can decide open includes: “certain terminations of pregnancy in relation to a person who lacks capacity to consent to such a procedure”, “an experimental or innovative treatment for the benefit of a person who lacks capacity to consent to such treatment” and “a case involving an ethical dilemma in an untested area”.
It also gives the Court power to order procedures “where that procedure or treatment must be carried out using a degree of force to restrain the person concerned”.
It was under this provision that Sir Nicholas Wall, the President of the Family Division sitting in the Court of Protection, made the landmark ruling on Wednesday that a woman suffering from cancer of the uterus must receive treatment even though she has a phobia of hospitals and needles.
He ruled that doctors should be allowed to sedate the 55 year-old in her own home, using a drug hidden in a glass of Ribena, then detain her in a ward following the essential treatment, because she has a learning difficulty and so was judged to be incapable of deciding on her own “best interests”.
Legal and medical experts questioned whether the woman’s earlier refusal to attend hospital should be over-ruled in favour of forcible treatment involving invasive surgery.
The case was only the second in the Court to be made public. The first, involving a blind pianist, came earlier this month after the Lord Chief Justice, Lord Judge, agreed that “the interests of the public and media are legitimately engaged”.