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Privacy still crucial for the most vulnerable – Lodders

17/12/2013

Vulnerable individuals will still need significant privacy when so-called “secret courts” are opened to scrutiny, an expert has warned.

Helen Rowett, a partner based in the Henley-in-Arden office of Lodders Solicitors, cautioned that some cases involved life and death issues.
She said: “Newspapers keep referring to the Court of Protection as a ‘secret court’.

“Now, partly because of pressure from the media and partly because of a change of attitude by the judges, it will become much more open, which is good as long as personal details can be kept private – and some of these recent cases are very personal.”

Experienced in Court of Protection applications, Helen stressed that health and welfare must remain the priority.

She noted: “When the Mental Capacity Act 2005 was being drafted, it was decided to have two separate types of authority, one for property and affairs and the other for health and welfare. The idea was that people might want different people to make these decisions.

“However, that appears not to be the case as very few make Health and Welfare Lasting Powers of Attorney, where people appoint someone to make decisions on their behalf should they be unable to do so in the future, and those who do tend to appoint the same attorneys.

“There have been even fewer Health and Welfare Deputies – where someone is appointed by the Court of Protection to make decisions for an individual who is unable to do so on their own.

“The original idea was that a Deputy might be appointed where many decisions would have to be made over a period of time, and in all other cases the Court of Protection would deal with single issue applications by making an Order.

“In fact almost all the applications have resulted in an Order rather than a Deputyship. In any case a Health and Welfare Deputy is never given the power to refuse life sustaining treatment.”

She went on: “Health and welfare can of course mean ‘life and death’, quite literally.

“One recent case was an application by an NHS trust to withhold life sustaining treatment from a man of 55 who was in, at best, a minimally conscious state and more likely in a persistent vegetative state.

“The doctors treating him felt that further procedures would amount to cruelty; however the family wanted treatment to be continued as he was a practising Muslim. The court decided that to do so would amount to ‘protracting death rather than extending life’.

“Then there came a request to approve a vasectomy for a severely learning disabled man. This man was in a stable relationship with a learning disabled woman and they had a child together. He had found the experience very traumatic, and was clear that he did not want another. His level of disability was profound, and he lacked capacity to consent to the vasectomy – and also probably did not understand that sexual intercourse could result in pregnancy and another child.

“His parents supported him in his relationship with his partner, but they asked the Court to approve the vasectomy since this would be in his best interests and the Court did so, after careful consideration.”

Helen said: “These cases are extreme, of course, but the point is that if you have capacity and wish to provide for a time when you haven’t, then putting in place a Health and Welfare LPA is the ideal way of making sure that someone you trust can make decisions for you.

“A Welfare Deputy will be appointed only in the most difficult of cases where important and necessary actions cannot be carried out without the Court’s authority or there is no other way of settling the matter in the best interests of the person lacking capacity.”

For more information please contact Helen Rowett on 01564 796843 or by email.

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