Inherent jurisdiction – history and development

Declaratory relief is a new common law remedy which can be obtained in High Court proceedings in the Family Division. It is a kind of wardship for adults. It results in a declaration that to do x y or z in respect of a person would not be unlawful, since it has been found to be in the best interests of the person concerned. It derives from the jurisdiction which the courts have always claimed in respect of medical intervention, when doctors or Trust Hospitals were uncomfortable as to whether they could act or cease to treat someone, whose capacity or condition was such as to make informed consent unclear.

The remedy, as to whether a proposed course of conduct in respect of someone’s daily living arrangements, is in the best interests of the person, and therefore lawful, is available whenever the subject of the dispute is mentally incapable of making or communicating a decision about that particular matter, him or herself.

It does not matter at all what the reason for the incapacity is. It could be functional or organic, resulting from illness, injury, or through a personality disorder, or straightforward unconsciousness, involving inability to communicate.

There is no statutory criterion or requirement for a doctor of a particular rank or expertise to fill out any forms. The diagnosis of incapacity will have to come from some sort of a reputable clinician, but it may be based on what that person has been told about the individual in question, if access cannot be obtained for an assessment of capacity. The court will order further medical opinion evidence if necessary, once the proceedings have been commenced.

The procedure is not available in the situation of physical incapacity or illness, unless that illness has reached a stage where the mental capacity of the individual has been so compromised as to make it likely that s/he can no longer make a decision for themselves.


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