Display title | Somerset NHS Foundation Trust v Amira [2023] EWCOP 25 |
Default sort key | Somerset NHS Foundation Trust v Amira (2023) EWCOP 25 |
Page length (in bytes) | 1,759 |
Page ID | 15063 |
Page content language | en - English |
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Page creator | Jonathan (talk | contribs) |
Date of page creation | 12:06, 20 June 2023 |
Latest editor | Jonathan (talk | contribs) |
Date of latest edit | 09:42, 29 September 2023 |
Total number of edits | 3 |
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Article description: (description ) This attribute controls the content of the description and og:description elements. | The trust sought anticipatory declarations concerning what would be lawful and in Amira's best interests were she to lose capacity during childbirth: under s15 MCA 2005 about treatment under the care plan, and under the inherent jurisdiction about associated restraint or deprivation of liberty. The day before the hearing the trust assessed that she now lacked capacity. The court agreed and declared the care plan to be in her best interests, but made the following obiter comments: (1) The Court of Protection does not have any power to make anticipatory declarations under s15(1)(c) in relation to someone who currently has capacity, and earlier cases were wrongly decided. (2) A s48 interim order (which would have been relevant if the decision on capacity had been different) cannot authorise deprivation of liberty, but it is ECHR-compliant for temporary deprivation of liberty in emergency cases to be authorised under the inherent jurisdiction. (3) In a litigious world trusts want "the gold standard of immunity" (orders under ss16(2)(a) and 4A(3) and (4), or even a s48 interim order with inherent jurisdiction deprivation of liberty), but these could be difficult to obtain quickly enough and equivalent immunity could be obtained using ss4B, 5 and 6, which is the route that Parliament intended. |