Judge: Baker LJ (sitting as a judge of the Court of Protection)

Citation: [2019] EWCOP 9

In this case Baker J (as he then was, although the judgment was given after he had become a Court of Appeal judge) considered an application for an order permitting the taking of samples from NLH to assist with DNA testing. Whilst the application was not contentious (it was not disputed that the order was in NLH’s best interests), it contains some important reminders for practitioners and decision-makers.

NHL was suffering in the late stages of a degenerative neurological disease known as Prion disease. The local authority applied to the Court for an order permitting the taken of samples from NLH to assist with DNA testing. A judge sitting in the family court had declared that the outcome of the DNA tests would be of vital importance to the resolution of proceedings to establish the paternity of a child and because there was a possibility that the child might have inherited the disease from NLH.

The application was listed for a hearing before a circuit judge but NLH’s condition deteriorated rapidly and it was decided to make the application as a matter of urgency to the out of hours judge sitting in the Family Division. The Official Solicitor, appointed to act as NLH’s litigation friend, agreed to the order being made. However, before the order was made, it emerged that a member of staff from a DNA testing company had already attended at the nursing home and taken the sample with the agreement of NLH’s family but without either the formal consent of NHL or approval of the court.

Baker J was entirely satisfied that approval should be given for the taking of the sample and that no injustice or harm was perpetrated in this case. However, the court emphasised the following points:

  • Where the patient lacks capacity, an application has to be made to the Court of Protection for an order authorising the taking of a sample; it will be unlawful for the sample to be taken without the Court’s permission (although Baker J did not specify the precise basis of this unlawfulness, this must be because it falls outside the scope of ‘care and treatment’ for purposes of s.5 MCA 2005).
  • There is always a judge of the Family Division on duty available to sit in the court of Protection twenty-four hours a day, seven days a week, every day of the year, to deal with urgent applications, usually by telephone.
  • There is no excuse for failure to comply with the obligations to obtain the court’s permission in circumstances such as these.
  • Any infringement in future will run the risk of not only attracting severe criticism from the Court but also potentially incurring liability for damages if a breach of human rights occurred.

Baker J made an order “retrospectively authorising the taking of the sample” (although, perhaps, this should better characterised as a determination that there had been a breach of NLH’s rights, but without causing him any loss).

CategoryBest interests - Medical treatment Date


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