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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> WCC v GS & Ors [2011] EWCOP 2244 (15 July 2011) URL: http://www.bailii.org/ew/cases/EWCOP/2011/2244.html Cite as: [2011] EWHC 2244 (COP), [2011] EWCOP 2244 |
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B e f o r e :
____________________
WCC |
Applicant |
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-v- |
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GS |
First Respondent |
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RS |
Second Respondent |
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JS |
Third Respondent |
____________________
Hope House, 45 Great Peter Street, London, SW1P 3LT
Telephone and Fax Number: 0207 233 1935
MS VICTORIA BUTLER-COLE, Counsel, appeared on behalf of the First Respondent.
RS appeared in person.
JS appeared in person.
____________________
Crown Copyright ©
DISTRICT JUDGE MARIN:
"The documentary evidence suggests that GS is suffering from an irreversible and progressive dementia, most likely due to Alzheimer's Disease. She also suffers from diabetes which is associated with short and long-term negative effects on her physical health and cognitive functioning. My assessment is in keeping with this".
"My interview was not easy due to GS having poor hearing and therefore not being certain of her comprehension. However, she did answer appropriately to my questions suggesting that in general comprehension and understanding is good (within the limits of her short-term memory). My main conclusions were that she has significant dementia with short- term and long-term memory impairment and impaired judgment. She cannot appraise her own health risks or manage her own self-care and relies on others for basic care needs. This is largely due to her mental incapacity. She appeared happy and content at interview, and this is described by others, with no express wishes or needs "
"Although her health may be more stable and her weight may increase if she maintains her current oral intake in my opinion her mental capacity will not significantly improve due to the progressive nature of her illness."
"GS suffers from relatively advanced dementia of at least moderate severity which is irreversible and progressive. This causes significant cognitive impairment, including poor judgment of her own needs and risks. She also suffers with diabetes that currently requires insulin injections. She has poor mobility which has been deteriorating for some years, more recently exacerbated by surgery on her foot due to diabetes complications and her dementia.GS is fully dependent on nursing interventions being doubly incontinent, unable to maintain her own nutrition or mobilise independently.
She requires 24-hour specialised dementia care. She will not significantly regain any independence, and her physical needs are likely to increase over time."
It provides in section 1(2) that:
"A person must be assumed to have capacity unless it is established that he lacks capacity."
"(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to
(a) a person's age or appearance, or(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities."
"(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable,(a) to understand the information relevant to the decision,(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision, (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of
(a) deciding one way or another, or(b) failing to make the decision."
"4. (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of (a) the person's age or appearance, or(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) When the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which
(a) are exercisable under a lasting power of attorney, or(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10) 'Life-sustaining treatment' means treatment which in the view of a person providing healthcare for the person concerned is necessary to sustain life.
(11) 'Relevant circumstances' are those
(a) of which the person making the determination is aware, and(b) which it would be reasonable to regard as relevant."