DNA testing on incapacitous patients without consent. Can you ever do it?

No, said the Court of Protection.

In a short judgment in a matter where the issue of DNA samples was already before a court in relation to a person who lacked capacity, the court ruled that a failure to obtain its authority to take DNA was unlawful and could incur liability for damages, if a breach of a patient’s human rights was established.

Briefly, the patient suffered from a degenerative neurological condition (Prion disease) which could be inherited. The local authority had applied to the court for an order permitting the taking of a DNA sample from him, because the family court had declared that the outcome of the DNA tests would be “of vital importance” in resolving family proceedings. The results would be important to establish paternity and, when the child was older, a decision could be taken about genetic testing. Sadly, the patient’s condition deteriorated rapidly and an out-of-hours application was made to the judge sitting in the Family Division.

A declaration was made that the patient lacked capacity and that it was lawful for the local authority to arrange for a DNA paternity test. The Official Solicitor, appointed to act as the patient’s litigation friend, agreed to the order. However, it emerged that a DNA sample had already been taken, with the agreement of the patient’s family, but without either the formal consent of the patient (who lacked capacity to provide consent) or the approval of the court!

The decision

In the circumstances of this case, the court was satisfied that, had it considered the application before the sample was taken, it would have given its approval. No injustice or harm had been caused and an order was made retrospectively authorising the taking of the sample. However, in different circumstances, the taking of an unauthorised sample could be highly prejudicial to the rights of the individual concerned.

A reminder for practitioners and carers

There is always a judge of the Family Division on duty available to sit in the CoP 24 hours a day, seven days a week, 365 days of the year, to deal with urgent applications, usually by telephone. So, there is “no excuse for any failure to comply with the obligations to obtain a court’s permission” in circumstances such as these cases.

Do get in touch with Helen Burnell or Jill Weston if you have similar cases or require support with making an application to the court.