SL v SL

Where an adult lacks capacity to consent to medical treatment, the court must decide whether the proposed treatment is in the patient’s best interests. The Bolam test operates only as an initial safeguard: the treatment must fall within the range supported by responsible and competent medical opinion. It does not determine which of several medically lawful options is best. The court must make that choice by applying a wider welfare assessment, including medical, emotional, social and moral considerations. Major irreversible surgery should not be authorised where a less invasive option is medically preferred and the evidence does not establish that surgery is presently necessary. The court should declare the single treatment that is in the patient’s best interests, rather than leave the choice to relatives or doctors.

An adult woman with severe learning difficulties lacked capacity to consent to treatment. Her mother applied for declarations that sterilisation and a laparoscopic subtotal hysterectomy could lawfully be performed. The proposed hysterectomy would end distressing menstruation and incidentally prevent pregnancy.

Wall J declared the hysterectomy lawful for therapeutic purposes, while also recognising the lawfulness of inserting a Mirena intrauterine system. The Official Solicitor appealed, arguing that the judge had placed insufficient weight on unanimous medical advice favouring Mirena initially and had misapplied Re F and the Bolam test. The central issue was whether immediate irreversible surgery was in the patient’s best interests.

The appeal was allowed. The declarations authorising the hysterectomy were set aside. The court declared that insertion of the Mirena system under general anaesthetic was, in the existing circumstances, in S’s best interests and lawful.

1. Weight of evidence. The judge had misunderstood important evidence from Dr K, failed sufficiently to consider developing medical alternatives, and gave disproportionate weight to family evidence. The medical evidence was unanimous that Mirena was the preferred immediate treatment, with surgery available later if necessary. The psychiatric evidence did not establish that continuation of menstruation would cause significant deterioration.
2. Proportionality and best interests. Major irreversible surgery was disproportionate at that stage. The patient was entitled to protection from drastic surgery unless and until it was demonstrated to be in her best interests. The principle of primum non nocere supported that conclusion.
3. Bolam and judicial choice. The proposed treatment must first fall within the range of treatment supported by a responsible body of competent medical opinion. Once that threshold is met, Bolam does not decide the judicial best-interests inquiry. The judge must select the best option, applying a broader welfare assessment encompassing medical, emotional, social, moral and other welfare considerations.
4. Procedure and declarations. It was erroneous to declare both treatment options lawful and leave the choice to S’s mother. The court’s function was to identify the treatment presently in S’s best interests. The three requirements stated in Re GF were necessary and should be applied cautiously; borderline cases should be referred to the court.

There was liberty to apply if circumstances materially changed. There was no order for appeal costs, subject to legal aid detailed assessment.

1. Court of Appeal (Civil Division): Appeal from the decision of Wall J allowing the proposed hysterectomy. The appeal was allowed and the declarations were replaced by a declaration authorising Mirena insertion.
2. High Court: Wall J, on 24 January 2000, granted declarations that the proposed therapeutic hysterectomy was lawful and that the alternative Mirena treatment was also lawful. The decision was reported as Re SL (Adult Patient) (Medical Treatment) [2000] 1 FCR 361 and Re S (Sterilisation: Patient’s Best Interests) [2000] 1 FLR 465.