There are growing concerns that under the Mental Capacity Act 2005 the Court of Protection has been handed sweeping powers without adequate scrutiny and openess. This departs from the general principle of open justice held by other courts.
Holding its cases behind closed doors, the Court has the power to order that people with severe learning difficulties are sterilised, undergo abortions or have life-support switched off. It can even impose “experimental” treatments on these patients without their consent.
The Act 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”.
Previously High Court judges were asked to rule whether people with severe learning difficulties in the care of health authorities and councils should undergo treatments if they believed it was in their best interests. However, these cases were held in public and could be reported by the media.
According to sources Sir Nicholas Wall, the President of the Family Division sitting in the Court of Protection, ruled last week that a woman with cancer of the uterus must receive treatment even though she has a phobia of hospitals and needles. He stated that this was because she has a learning difficulty and so was judged to be incapable of deciding on her own “best interests”.
He then allegedly ruled that doctors should be allowed to sedate the 55 year-old in her own home, using a drug hidden in a glass of squash, and then detain her in a ward following the essential treatment.
The case was only the second in the Court to be made public.
And yes, this is in England and the year is 2010!