Declaratory relief is ONLY available if the person’s vulnerability has a mental origin – physical disability, illness or frailty is not sufficient to give the courts jurisdiction to override the decision-making capacity of people not suffering from any significant degree of mental impairment.
That said, assuming that one has an incapacitated person in mind, the sorts of issue covered in declaratory relief proceedings, can, and have included:
In which particular care home someone should reside
With whom someone should have contact, and whether that should be supervised
Whether someone should be provided with care in their own home by relatives, or by the authorities
Regarding health and medical related issues, there is advice given in para 8. section 2 of the DoH’s Reference Guide to Consent for Examination or Treatment, related to the sorts of situations in which declaratory relief should be sought for the protection of all concerned. We reproduce that advice below:
Sterilisation for contraceptive purposes
Donation of regenerative tissue such as bone marrow
withdrawal of nutrition and hydration from a patient in a persistent vegetative state
Where there is doubt as to the patient’s capacity or best interests
Often the hardest question for professionals will be what to suggest by way of a proposal for the High Court’s consideration and approval in declaratory relief proceedings. The staff concerned may not want to suggest that a client should not ever see a person thought to be causing them distress or abusing them, and they may not wish to prevent access of that person to the other, in the other’s home, if that was part of the original care plan. Agreeing visiting rights to the person in another setting may be possible, but the notion that someone from a care agency should always attend upon a client when he or she visits the alleged abuser, or is visited by them, may not be practicable, in terms of either the accommodation or resources.
We believe that in such cases the best the court can do is grant an injunction to prevent the particular form of attention which is thought to constitute the abuse – ie over-attentive intimate personal care, or bowel evacuation when it is not necessary for medical reasons, manual masturbation, where it has been found to have been done more for the ‘doer’s’ purposes, than the for incapacitated person’s pleasure or relief from frustration.