F v. West Berkshire Health Authority and Anr.

[1989] 2 All ER 545
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F was a 36 year old adult woman who suffered from a disability that left her with the mental capacity of a young child.  She had been a voluntary in-patient at a mental hospital since the age of 14, where she received treatment and enjoyed a great degree of freedom of movement. Although the facility had had some success in treating her aggression problems, there was no prospect that her mental capacity would develop any further.

F had begun a voluntary sexual relationship with a male patient at the facility, which raised concerns about her ability to comprehend or cope with a pregnancy or care for any baby that resulted. From a psychiatric point of view, any pregnancy would have been “disastrous.” Additionally, there was “a serious objection to each of the ordinary methods of contraception”: either because of F’s inability to use them effectively or because of the risk of damage to her health from her inability to report side effects. Sterilization was chosen as the best option.

The Mental Health Act 1983 (the Act) imposed restrictions on the types of treatment that could be given to mentally disabled persons to treat their mental disorder, but did not contain provisions relating to treatment for other conditions. The lawfulness of other treatments was therefore to be determined by the common law.

Because F was unable to give consent, a declaration was sought as to the lawfulness of her sterilization despite her lack of consent or a court order. F was installed by her mother as plaintiff, and the hospital served as defendant. As neither party contended that sterilization was not in her best interest, the trial judge and the Court of Appeal both approved of the operation. The parties filed a further appeal as a test case before the House of Lords, upon the recommendation of third parties.

The Court considered whether or not it had jurisdiction to withhold or grant consent to the operation, whether or not the Court could otherwise consider the lawfulness of the procedure, and whether or not the declaration should have been granted.

On the first question, the Court held that it no longer had jurisdiction parens patriae over adults with mental disabilities, and that the Act did not grant jurisdiction to allow or refuse the procedure either. It could not therefore decide to grant consent to the operation. However, the Court considered that there were many cases where an adult unable to consent to medical treatment would nonetheless need treatment. In such cases, there needed to be an avenue for doctors to provide necessary medical treatment without committing trespass or battery. The Court considered that the common law would allow an operation on an adult in such situations if the treatment would be in the best interests of the patient. Such a situation, the Court held, would be analogous to that of an unconscious emergency room patient, who would not be able to consent to treatment, but whom doctors would lawfully be able to provide treatment to because the doctors would have a duty to act in the patient’s best interest while the patient was under their care. The procedure could therefore be lawfully done without the consent of the Court in any case.

However, the Court considered that it would be best practice if, before undertaking sterilization of a mentally disabled adult, medical practitioners first sought a declaration from the Court that such a procedure was in the patient’s best interest. While such a declaration would not be strictly required for the procedure to be lawful, a declaration would nonetheless be desirable because of the serious and permanent consequences of sterilization, because of the risk that sterilization might be undertaken for improper purposes, and to allow doctors to have some certainty over the lawfulness of the procedure. The Court considered that it was able to make this type of declaration as part of its inherent jurisdiction to make orders.

Ultimately, as each of the parties agreed that sterilization was in F’s best interests, the Court granted the declaration, but amended it to be explicitly conditional on the facts at the time.

“In my opinion, the principle is that, when persons lack the capacity, for whatever reason, to take decisions about the performance of operations on them, or the giving of other medical treatment to them, it is necessary that some other person or persons, with the appropriate qualifications, should take such decisions for them. Otherwise they would be deprived of medical care which they need and to which they are entitled.” [1989] 2 All ER p. 551.

“Having regard to all these matters, I am clearly of the opinion that, although in the case of an operation of the kind under discussion involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice.” [1989] 2 All ER p. 552.