NLH was suffering in the late stages of the degenerative neurological condition known as Prion disease. The applicant local authority applied to the Court for an order permitting the taking of samples from NLH to assist with DNA testing. The results would be important not only to establish paternity of the child in question but also because it was considered important that any child of NLH should be aware that there was a possibility that he or she might have inherited the disease so that, when the child was older, a decision could be taken about genetic testing. Lord Justice Baker duly made the order sought.
Shortly before the order was made, however, it emerged that the samples had already been taken. The court reminded practitioners, carers and those involved in taking samples in these circumstances that, where the patient lacks capacity and an application has been 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. No harm arose on this occasion, but any infringement in future would run the risk not only of attracting severe criticism from the Court but also potentially incurring liability for damages if a breach of human rights were to be established.
The full judgment can be read here.
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