ABSTRACT
This chapter concentrates on the basic legal framework and general principles, making particular reference to so-called non-therapeutic areas relating to the control of fertility by sterilisation and abortion. The chapter suggests that the therapeutic/non-therapeutic distinction may not always protect the person lacking capacity. It also suggests that the common law provided the legal framework for decision-making in cases of incapacitated patients until very recently. The common law developed the defence of necessity to avoid the unpalatable consequences of a doctor being civilly and criminally liable in some circumstances. Powers of attorney are documents that enable someone to give powers to third parties to make decisions on their behalf. The wardship jurisdiction must be distinguished from the inherent jurisdiction of the High Court. The debate on sterilising the mentally handicapped has been a long, and as the case law will show, a vociferous one. The debate has as its emotive backdrop the history of late nineteenth and early twentieth centuries.
