F v West Berkshire Health Authority (Re F (Mental Patient: Sterilisation))

Facts

F was a woman of 36 with severe learning disabilities and the understanding of a young child, who lived as a voluntary patient in a mental hospital. She was in a sexual relationship with a male patient. Doctors considered that pregnancy would be disastrous for her and that other forms of contraception were unsuitable, and recommended sterilisation. F could not understand the operation or consent to it, and her mother supported it. F, acting by her mother as next friend, applied against the health authority for a declaration that sterilisation would not be unlawful.

History

The High Court granted the declaration and the Court of Appeal upheld it. The case went to the House of Lords.

Issue

Whether a sterilisation operation performed on an adult who is unable to consent would be a trespass to the person; whether anyone, including a relative or the court, could consent on her behalf; and on what basis, if any, treatment of a patient without capacity is lawful.

Held

The declaration was upheld. The operation would be lawful if it was in F's best interests, under the doctrine of necessity, and the court had jurisdiction to declare it lawful.

Ratio

• A doctor may lawfully treat an adult who lacks capacity to consent, without being liable for battery, where the treatment is necessary because the patient cannot consent and where it is in the patient's best interests.
• Treatment is in the best interests of the patient if it accords with a practice accepted at the time by a responsible body of medical opinion skilled in the relevant treatment.
• No one, including a relative or the court, can consent on behalf of an adult who lacks capacity, but the High Court has jurisdiction to grant a declaration as to the lawfulness of proposed treatment.

The judgments

Key reasoning

• Medical treatment of a person who cannot consent would otherwise be a battery, and it would be absurd if doctors could not give necessary treatment to people without capacity, so the common law recognises a defence of necessity which does not depend on consent.
• The old jurisdiction of the Crown over persons of unsound mind had ceased to exist, and parents or courts cannot give consent for an adult, so the lawfulness of treatment rests on necessity and best interests, not on proxy consent.
• The standard for deciding best interests is that of a responsible body of medical opinion, which protects the doctor, but the court's declaratory jurisdiction provides a safeguard in cases of drastic or irreversible treatment.

Obiter

• As a matter of good practice, a proposed sterilisation of a person who lacks capacity for non-therapeutic reasons should be brought before the High Court for a declaration before it is carried out.

Where it fits in the module

On the FHS Tort list under trespass to the person: battery and assault. Re F shows how the law of battery deals with medical touching of those who cannot consent, and the interplay between the absence of consent and the defence of necessity. It raises the debate whether necessity is suited to non-emergency treatment of incapable adults, the role of professional opinion in defining best interests, and the relation of battery to autonomy, and it can be read with Collins v Wilcock [1984] 1 WLR 1172 on the general exception for physical contact, Chatterton v Gerson [1981] QB 432 on consent and information, and the Mental Capacity Act 2005.

Criticisms

• Applying the Bolam standard to best interests allows the medical profession to define the interests of an incapable patient, although the question includes social and ethical judgments that are not within medical expertise, and the later statute adopted a broader approach.
• Using necessity, a doctrine traditionally associated with emergencies, to justify major and irreversible intervention on incapable adults stretches the doctrine and provides no clear boundaries, while the rule of practice that the court should be asked to approve such operations was not a rule of law.
• Refusing any form of proxy consent while allowing declarations left a gap in the law, because the declaration is not consent and the court's role in the absence of a statute rested on an uncertain jurisdictional footing.