Sam Karim QC recently appeared in the Court of Protection, instructed by the Official Solicitor, in a case which tasked the Court (it appears for the first time) with deciding whether a young adult should be provided serious medical treatment to achieve puberty, contrary to their express wish.
The protected party in this case lacked capacity to make decisions about her medical treatment and had diagnosis of primary ovarian failure. In the absence of the medical treatment, it was said that the individual would remain in the pre-puberty phase at her early 20’s, and would likely suffer from osteoporosis/fracture risk and increased risk of coronary heart disease, which would lead to her subsequent and early death.
The Court, acceding to the arguments made by Sam Karim QC, instructed by the Official Solicitor acting on behalf of the individual who lacked capacity, said that the treatment was in her best interests because:
- Puberty represents a period of transition from childhood into adulthood during which complete reproductive capacity is normally attained. The process defines sexual identity, orientation and personality;
- Puberty results in physical and mental changes (culminating in the individual achieving majority);
- Article 8 of the ECHR protects the right to personal development and autonomy, Niemietz v. Germany, 16 December 1992, ECtHR (Series A, no. 251-B), Pretty v. UK ECtHR (29 April 2002). As opined by the ECtHR in Pretty at , “Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees”; and
- Article 6(2) of the United Nations Convention on the Rights of Persons with Disabilities states that all appropriate measures should be taken to: “ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.”.
A judgment is to follow.
Sam Karim QC is the Head of Public Law & Court of Protection at Kings Chambers and is recognised as a leading silk in Chambers & Partners and Legal 500.