O v P & Anor
[2024] EWHC 1077 (Fam)
GK & Anor v EE (formerly known as RK) & Anor
18 September 2023
[2023] EWCOP 49
Court of Protection
EE's parents wanted to stop EE from getting gender-affirming medical treatment because they think EE is too unwell to decide. The judge said there's no treatment planned right now, so it's too early to decide if EE can make that decision, and the parents' reasons weren't good enough. The judge said EE is assumed to be able to make their own decisions.
Key Facts
- •EE, a non-binary individual, is turning 18 in September 2023.
- •EE's parents (GK and LK) applied under the inherent jurisdiction and Court of Protection to prevent EE from undergoing gender-affirming medical treatment.
- •EE is currently in the care of a local authority under a s.20 Children Act 1989 agreement.
- •Significant factual disputes exist between EE and their parents regarding past events and allegations of abuse.
- •EE is not currently undergoing or scheduled for any gender-affirming medical treatment.
- •The parents claim EE lacks capacity due to a family history of mental illness, alleged psychotic episodes, and self-harm, but there's limited medical evidence to support this.
- •The local authority and EE argue the applications are driven by the parents' inability to accept EE's gender identity and that there's insufficient evidence to rebut the presumption of EE's capacity.
Legal Principles
Mental Capacity Act 2005 (MCA 2005): Principles of capacity, including presumption of capacity, need to help a person make a decision, and the fact that an unwise decision does not mean lack of capacity.
Mental Capacity Act 2005
MCA 2005: Capacity is decision-specific and time-specific. The 'matter' must be clearly defined, and the assessment must be proximate to the time of the decision.
A Local Authority v JB [2022] AC 1322; PC v City of York Council [2014] 2 WLR 1
MCA 2005: Burden of proof lies on the person asserting lack of capacity (balance of probabilities).
Mental Capacity Act 2005 s. 2(4); KK v STC and Others [2012] EWHC 2136 (COP)
Family Law Reform Act 1969: Minors over 16 can consent to medical treatment; this is legal capacity, distinct from mental capacity under MCA 2005.
Family Law Reform Act 1969, s.8; NHS Trust v X [2021] EWHC 65 (Fam)
MCA 2005: Court can make interim orders if there's reason to believe a person lacks capacity and it's in their best interests.
Mental Capacity Act 2005, s.48; DP v LB Hillingdon [202] EWCOP
Court of Protection Rules 2017: Expert evidence should be restricted to what's necessary.
Court of Protection Rules 2017, Rule 15.3
Outcomes
Parents' applications under MCA 2005 and for expert assessment of EE's capacity are refused.
Insufficiently defined 'matter' for capacity assessment; no scheduled gender-affirming treatment; lack of evidence to rebut the presumption of capacity; parents' evidence deemed insufficient and potentially biased.
Parents' application for appointment as welfare deputies refused.
In light of the refusal of the other applications.
Parents' applications under the inherent jurisdiction are refused.
Inherent jurisdiction ends in September 2023; disproportionate to grant relief given the circumstances.
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