The Declaratory Judgement: Old and New Law in 'Medical' Cases

The mental capacity act was fully implemented in october 2007. Under the act, a new Court of Protection will be established, which will, in addition to its many other functions, have the authority to deal with cases currently heard under the High Court's inherent jurisdiction. When making decisions on behalf of mentally incapacitated adults, the High Court has used its declaratory jurisdiction to great advantage in declaring not only the lawfulness/unlawfulness of actions, but also to ascertain whether or not a person is incapacitated and in the event that he/she is, what that person's best interests are.
The Act has, to a great extent, codified these common law principles in its key provisions, but as it has not expressly superseded the common law, the new court is expected to rely on previous jurisprudence in the interpretation of the legislative provisions. This article thus examines the background and development of the declaratory jurisdiction and how this will influence the way in which the new Court of Protection will make decisions on behalf of mentally incapacitated adults in the future.