F v West Berkshire Health Authority

The House of Lords held that the proposed sterilisation of an adult woman lacking capacity could lawfully be performed if, and only if, it was in her best interests. The court concluded that the former parens patriae jurisdiction in respect of adults of unsound mind no longer exists and that Part VII of the Mental Health Act 1983 does not confer a power to authorise medical treatment such as sterilisation. The High Court has an inherent jurisdiction to make a declaration about the lawfulness of proposed treatment for an incapacitated adult; although court approval is not strictly necessary for lawfulness, it is highly desirable in cases of sterilisation. The standard of professional care applicable is that established in Bolam v Friern Hospital Management Committee: treatment must accord with a responsible body of medical opinion and be in the patient’s best interests. The Lords recommended a procedure by originating summons in the Family Division and substituted an amplified form of declaration and a liberty to apply in the event of material change of circumstances.

The plaintiff, F., a 36 year old voluntary long-term psychiatric in-patient with severe learning disability, had a longstanding sexual relationship with another patient and faced a real risk of pregnancy which she could not understand or cope with. Ordinary contraceptive methods were unsuitable. By originating summons in the Family Division, F., by her mother and next friend, sought either a declaration that sterilisation would not be unlawful despite her inability to consent or the court's consent under parens patriae or inherent jurisdiction.

Procedural history: Scott Baker J in the High Court granted a declaration (2 December 1988). The Official Solicitor, with a direction under section 90(3)(b) of the Supreme Court Act 1981, obtained leave to appeal to the Court of Appeal. The Court of Appeal (3 February 1989) dismissed the Official Solicitor's appeal but recommended a formal approval procedure; leave to appeal to the House of Lords followed and the Mental Health Act Commission was permitted to intervene.

Issues framed by the House: (i) whether court involvement was necessary or desirable when sterilisation of an incapacitated adult was proposed; (ii) what jurisdiction existed to authorise or approve such treatment (parens patriae, Part VII of the Mental Health Act 1983, Rules of Court or declaratory/inherent jurisdiction); and (iii) what procedure and standard should apply in any judicial decision.

The House reasoned that parens patriae in relation to adults of unsound mind had been abolished and Part VII of the 1983 Act (the Court of Protection provisions) did not extend to medical treatment but to property and affairs. The common law principle of necessity justifies medical treatment given to persons unable to consent when it is in their best interests, and the appropriate standard of care is provided by Bolam. Because sterilisation is irreversible and involves fundamental interests, it is highly desirable that the court be asked to consider its lawfulness; the appropriate mechanism in present law is the High Court's inherent jurisdiction to grant declarations. The Lords therefore dismissed the appeal, substituted an amplified declaration (recording factual findings, limiting it to existing circumstances and providing liberty to apply on material change), and gave guidance on procedure (origination by summons in the Family Division, Official Solicitor involvement where appropriate).

Appeal dismissed. The House held that (1) the Crown's parens patriae jurisdiction in relation to adults of unsound mind no longer exists and Part VII of the Mental Health Act 1983 does not give a judge power to authorise medical treatment such as sterilisation; (2) the common law permits doctors to give treatment to adults lacking capacity when it is in their best interests (principle of necessity), judged by the familiar professional standard (Bolam); (3) although court approval is not legally necessary to render treatment lawful, judicial determination by way of declaration is highly desirable in cases of sterilisation and the High Court has inherent jurisdiction to grant such a declaration; and (4) a substituted form of declaration and liberty to apply should be adopted, and procedural guidance given for applications to the Family Division.

Originating summons in the High Court, Family Division (Scott Baker J) — declaration granted 2 December 1988; Official Solicitor obtained leave to appeal to the Court of Appeal under a Lord Chancellor direction (section 90(3)(b) Supreme Court Act 1981); Court of Appeal gave its order 3 February 1989 (dismissing appeal and commenting on procedure); leave to appeal to the House of Lords was given and the House heard the appeal and dismissed it (reasons dated 24 May 1989).