DNA testing and the Court of Protection

The recent case of DCC v NHL [2019] EWCOP9 considered an application by a local authority for an order permitting a DNA sample to be taken from NHL to assist with DNA testing.

The application for the DNA sample to be taken was not contested. However, the case contains some important reminders for practitioners, carers and those taking samples where the patient lacks capacity and an application has been made to the Court of Protection authorising the taking of a sample.

DCC v NHL [2019] EWCOP9 - the case

NHL was suffering in the late stages of a genetic degenerative neurological condition known as Prion disease. A Judge in the Family Court had declared the outcome of DNA tests would be of vital importance in the resolution of proceedings to establish the paternity of a child and because there was a possibility that the child may have inherited the disease from NHL.NHL had previously indicated to a social worker that a paternity test should be undertaken so that the child could be made aware that they may have inherited the disease and would therefore have the opportunity to decide whether to undergo genetic testing.

The application was listed for a hearing but NHL’s condition deteriorated rapidly and an urgent out of hours application was made. However, before the order was made, it emerged that the DNA testing company had already visited NHL and had taken the DNA sample with the agreement of NHL’s family. However, the sample had been taken without the formal consent of NHL or approval of the court.

The Court’s decision

The Judge was satisfied that approval should be given for the taking of the DNA sample and made an order retrospectively authorising the taking of the sample. The Judge did not feel any injustice or harm had occurred in taking the DNA sample. However, the Court made the following points as a reminder of the correct procedure when an adult lacks capacity to give their consent for a DNA sample to be taken:

• Where the patient lacks capacity, an application has to be 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.
• There is always a Judge of the Family Division available to sit in the Court of Protection to deal with urgent applications, usually be telephone, twenty four hours a day, seven days a week, every day of the year.
• There is no excuse for failure to comply with the obligation to obtain the Court’s permission.
• Any infringement in future will run the risk of not only attracting the Court’s severe criticism but also potentially incurring liability for damages if a breach of human rights occurred.

How can Boyes Turner help?

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

For more information on deputyship and how we can help please contact our Court of Protection team by email on cop@boyesturner.com