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Insights / News
John McKendrick, instructed by Weightmans solicitors, has appeared for the local authority in a ground breaking case before the Court of Protection.
Today, Mrs Justice Eleanor King has made legal history by granting an application for a declaration that it is lawful and in the best interests of an incapacitated adult to undergo a non therapeutic sterilisation. This is believed to be the first time a court in this jurisdiction has approved such a procedure being carried out on a man who is incapable of consenting.
John acted for the local authority, who argued the incapacitated man should undergo the sterilisation procedure to provide him with greater independence and to safeguard his relationship with his long term girlfriend.
The man the subject of the proceedings consistently stated he did not want further children.
John and Salma Kantharia of Weightmans advanced a positive case as to why the procedure would be in the man’s best interests. They were the only legal team to advance such a case. The Official Solicitor was opposed to the application until the last day of the hearing, when his position changed to one of neutrality. The man’s parents, acting in person, supported the application.
The court accepted the submissions advanced by John on behalf of the local authority that the man’s independence and hard earned achievements should not be put at risk by safeguarding steps to prevent the possibility of conceiving further children. The court was anxious to protect the achievements the man the subject of the proceedings had mastered, such as independent bus travel, and held that: “[a]s Mr McKendrick said: ‘as a person with learning disabilities, his successes and failures in life are measured differently to the non learning disabled population'”.
The court held: I accept, as submitted by Mr McKendrick, that based upon my findings of fact there is in DE’s case no missing piece of the evidential jigsaw and that the evidence unequivocally points to an improvement in the quality of DE’s life in the event that he has a vasectomy.
The court also accepted John’s submissions that there could be no human rights starting point when considering whether or not to permanently remove someone’s fertility under Article 8 ECHR or the UN Convention on the Rights of Persons With Disabilities as both legal instruments contained competing and distinct rights to a private life and personal autonomy.
John is a leading practitioner in the field of mental incapacity and works more widely in the field of public law.
Listen to John’s interview on BBC Radio.
News 15 Aug, 2013
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