F v West Berkshire HA

An adult of sound mind must consent to medical treatment involving physical contact. Where an adult lacks capacity, the common-law principle of necessity permits treatment which cannot practicably await consent and which a reasonable person would undertake in the patient’s best interests.

Best interests encompass preserving life, health and well-being. The treatment must accord with a responsible and competent body of relevant professional opinion under the Bolam standard.

A court cannot consent on behalf of an incapacitated adult. It may declare proposed treatment lawful. Although not legally essential, a declaration should invariably be sought before the non-therapeutic sterilisation of an incapacitated adult because of its irreversible and fundamental consequences.

F was an adult woman with a permanent and profound mental disability. She lacked capacity to consent to medical treatment. A sexual relationship placed her at risk of pregnancy, which the unchallenged medical evidence indicated would be disastrous for her. Available contraceptive methods presented serious difficulties, and her clinicians considered sterilisation by tubal ligation to be in her best interests.

Scott Baker J declared that sterilisation would not be unlawful merely because F could not consent. The Court of Appeal unanimously dismissed an appeal brought by the Official Solicitor, but proposed that the court should approve such operations through a new procedure.

The central issues were whether treatment could lawfully be given without F’s consent, whether any court possessed authority to consent to or approve it, whether declaratory relief was available, and what standard governed the assessment of her best interests.

1. The appeal was dismissed unanimously. The House set aside the Court of Appeal’s order, save as to legal aid taxation, and substituted a declaration that the proposed sterilisation was lawful because, in the existing circumstances, it was in F’s best interests. Liberty to apply was granted in the event of a material change before the operation.

2. Per Lord Brandon and Lord Goff, with Lord Bridge and Lord Jauncey agreeing, medical treatment involving physical contact ordinarily requires the consent of an adult patient. Where the patient lacks capacity, however, the common-law principle of necessity justifies treatment undertaken in the patient’s best interests. Lord Goff explained that an emergency is a common source of necessity but is neither its criterion nor a prerequisite. Intervention requires both a practical inability to obtain consent and action which a reasonable person would take in the patient’s best interests.

3. Per Lord Brandon and Lord Goff, best interests encompass action to preserve life, health or well-being. For permanent incapacity, this may extend from surgery and substantial treatment to routine medical, dental and personal care. A doctor responsible for the patient may also owe a duty to provide such care.

4. Per Lord Brandon, Lord Goff and Lord Jauncey, the applicable professional standard is the test in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582. The decision and treatment must accord with a responsible and competent body of relevant professional opinion. A more stringent standard could improperly deprive incapacitated adults of treatment available to competent patients.

5. Per Lord Brandon and Lord Goff, the former parens patriae jurisdiction over adults of unsound mind no longer existed. Nor did Part VII of the Mental Health Act 1983 confer jurisdiction over medical treatment: “the affairs of patients” concerned property, business, legal transactions and similar dealings. The court therefore could neither consent on F’s behalf nor approve the operation in a manner which made an otherwise unlawful act lawful.

6. The High Court nevertheless possessed inherent jurisdiction to declare whether proposed treatment was lawful. Rules of court regulate procedure but cannot create substantive jurisdiction. Because non-therapeutic sterilisation is generally irreversible, affects the fundamental ability to bear children and carries a risk of improper or mistaken decision-making, Lord Brandon and Lord Goff considered that seeking a declaration should become invariable practice, although it was not a legal prerequisite.

7. Lord Griffiths agreed in the disposition but would have developed a common-law rule making sterilisation without prior High Court consent unlawful. He accepted the declaratory procedure as the available second-best protection.

1. House of Lords: The appeal was dismissed unanimously. The Court of Appeal’s order was set aside, save as to legal aid taxation, and an amplified declaration and liberty-to-apply order were substituted.

2. Court of Appeal: The court unanimously dismissed the Official Solicitor’s appeal from Scott Baker J and granted leave to appeal. It affirmed that sterilisation was in F’s best interests, but proposed a procedure under which the court would approve such treatment.

3. High Court, Family Division: Scott Baker J declared that sterilisation would not be unlawful by reason only of F’s inability to consent.