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English Courts provide a variety of services to society. In relation to crime, courts sentence those successfully prosecuted. Civil wrongs between private citizens are adjudicated; the tort of clinical negligence is an ubiquitous example. The High Court is empowered to award damages, among other remedies. One of these ‘remedies’ is to make declarations, whereby the lawfulness of all aspects of care and treatment of incapacitated adults and children can be determined. The Court of Protection, dealing with incapacitated people of 16 years and over, is authorised by the Mental Capacity Act 2005 to make declarations as to whether clinical steps in relation to the patient are or will be lawful.
This declaratory jurisdiction may be considered as part of the common law’s ‘great safety net’ (DL v A Local Authority  EWCA Civ 253), filling gaps in the law where necessary. But a declaration changes nothing: It cannot make lawful that which without the declaration would be unlawful; and whatever may be declared lawful was equally lawful prior to the declaration being made.1 Nonetheless, the hospital that obtains a declaration has a measure of reassurance that it is acting within the law.
The legal position can in some circumstances be declared in advance, rather than waiting until treatment has occurred, (and then asking whether in retrospect it was lawful). Anticipatory declarations may not always be appropriate ‘…since they should only extend to matters where the factual basis is known. This makes it unwise to endorse aspects of …
Funding The author has not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.
Competing interests None declared.
Provenance and peer review Commissioned; internally peer reviewed.
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