Case Facts
The claimant, F, was a 36-year-old woman with serious mental disability. She had the verbal capacity of a child aged two and the general mental capacity of a child aged four or five. She had been a voluntary in-patient at a mental hospital controlled by the defendant health authority since the age of 14. Whilst resident there, F formed a sexual relationship with a fellow patient, referred to as P. Medical evidence established that, from a psychiatric point of view, it would be disastrous for F to become pregnant. Furthermore, all ordinary methods of contraception were found to be unsuitable — either because F could not use them effectively or because of the risk they posed to her physical health. In light of this, F's mother, acting as her next friend, applied to the court for a declaration that a proposed sterilisation operation on F would be lawful notwithstanding the absence of F's consent.
At first instance, Scott Baker J granted the declaration. The Court of Appeal dismissed an appeal brought by the Official Solicitor, who then appealed to the House of Lords, contending that in the absence of any parens patriae jurisdiction, sterilisation of an adult mental patient who was unable to consent could never be lawful.
Held
The House of Lords dismissed the appeal. The majority (Lord Griffiths dissenting) held that a declaration of lawfulness was not strictly necessary before the operation could be performed. A doctor could lawfully operate on or administer treatment to an adult patient incapable of consenting, provided the operation or treatment was in that patient's best interests. Lord Griffiths, dissenting on this procedural point, considered that court authorisation was necessary before such an operation could proceed.
The House of Lords further held — and this is a central finding of the case — that the court had no jurisdiction, whether statutory or derived from the Crown as parens patriae, to give or withhold consent to a sterilisation operation on an adult woman disabled by mental incapacity. The Crown's prerogative parens patriae jurisdiction in lunacy had been superseded by the Mental Health Act 1983. Moreover, the jurisdiction conferred on the nominated judge under s 93(1) of the Mental Health Act 1983 to manage "the affairs of patients" does not extend to questions of medical treatment; it relates solely to a patient's business and financial affairs and matters of that kind.
Notwithstanding the absence of any consenting jurisdiction, the court retained jurisdiction under its inherent jurisdiction and under RSC Ord 15, r 16 to make a declaration that a proposed sterilisation operation would be lawful on the ground that, in the circumstances, it was in the best interests of the patient. The appeal was accordingly dismissed and the declaration of lawfulness was upheld.
Ratio Decidendi
The ratio of this case rests on two interconnected propositions.
First, at common law, a doctor may lawfully operate on or otherwise treat an adult patient who is incapable of giving consent, provided that the operation or treatment is in the best interests of that patient. Treatment will be in a patient's best interests only if it is carried out to save their life or to ensure improvement in, or prevent deterioration of, their physical or mental health.
Second, the appropriate standard for assessing whether proposed treatment meets the best interests criterion is the Bolam v Friern Hospital Management Committee [1957] test — that is, whether the treatment would be accepted as appropriate by a responsible body of medical opinion skilled in that particular form of treatment. The application of the Bolam test to the best interests standard was explicitly confirmed by the House of Lords as the governing legal test in cases of this kind.
These two propositions together establish the principled basis upon which medical professionals may treat incapacitated adult patients without consent and without exposing themselves to liability in tort.
Obiter Dicta
The House of Lords gave important procedural guidance, expressed per curiam, which — whilst not strictly part of the ratio — has assumed considerable practical significance. Although a declaration is not legally required to establish the lawfulness of proposed treatment, their Lordships strongly recommended that an application for such a declaration be made in every case involving a proposed sterilisation of an incapacitated adult patient.
The procedural guidance stipulated that applications should be made by originating summons issued out of the Family Division of the High Court. The patient must always be made a party to the proceedings and should normally be joined as a respondent. The patient's guardian ad litem should normally be the Official Solicitor. Hearings should ordinarily be conducted in chambers, but the decision and reasons should be given in open court.
Their Lordships also observed that sterilisation is a matter of the utmost gravity affecting reproductive rights and personal autonomy. It must not be undertaken for the convenience of carers or family members. Independent judicial scrutiny through the declaration procedure serves to safeguard both the patient's welfare and their privacy, and ensures that decisions of such gravity are subject to appropriate oversight.