An application was made for a declaration that a proposed sterilisation of an adult woman who could not give consent would be lawful.
Held: It would not.
Lord Donaldson of Lymington MR: ‘Just as the law and the courts rightly pay great, but not decisive, regard to accepted professional wisdom in relation to the duty of care in the law of medical negligence (the Bolam test), so they equally would have regard to such wisdom in relation to decisions whether or not and how to treat incompetent patients in the context of the law of trespass to the person. However, both the medical profession and the courts have to keep the special status of such a patient in the forefront of their minds. The ability of the ordinary adult patient to exercise a free choice in deciding whether to accept or to refuse medical treatment and to choose between treatments is not to be dismissed as desirable but inessential. It is a crucial factor in relation to all medical treatment. If it is necessarily absent, whether temporarily in an emergency situation or permanently in a case of mental disability, other things being equal there must be greater caution in deciding whether to treat and, if so, how to treat, although I do not agree that this extends to limiting doctors to treatment upon the necessity for which there are ‘no two views’ (per Wood J. in T. v. T. [1988] Fam. 52, 62). There will always or usually be a minority view and this approach, if strictly applied, would often rule out all treatment. On the otherhand, the existence of a significant minority view would constitute a serious contra-indication.’
Neill LJ: ‘I have therefore come to the conclusion that, if the operation is necessary and the proper safeguards are observed, the performance of a serious operation, including an operation for sterilisation, on a person who by reason of a lack of mental capacity is unable to give his or her consent is not a trespass to the person or otherwise unlawful.
It therefore becomes necessary to consider what is meant by ‘a necessary operation.’ In seeking to define the circumstances in which an operation can properly be carried out Scott Baker J. said this: ‘I do not think they are liable in battery where they are acting in good faith and reasonably in the best interests of their patients. I doubt whether the test is very different from that for negligence.
With respect, I do not consider that this test is sufficiently stringent. A doctor may defeat a claim in negligence if he establishes that he acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question. This is the test laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. But to say that it is not negligent to carry out a particular form of treatment does not mean that that treatment is necessary. I would define necessary in this context as that which the general body of medical opinion in the particular specialty would consider to be in the best interests of the patient in order to maintain the health and to secure the well-being of the patient. One cannot expect unanimity but it should be possible to say of an operation which is necessary in the relevant sense that it would be unreasonable in the opinion of most experts in the field not to make the operation available to the patient. One must consider the alternatives to an operation and the dangers or disadvantages to which the patient may be exposed if no action is taken. The question becomes: What action does the patient’s health and welfare require?’
Judges:
Lord Donaldson of Lymington MR, Neill L.J, Butler-Sloss L.J
Citations:
Unreported 3 Feb 1989
Jurisdiction:
England and Wales
Cited by:
Appeal from – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Health Professions
Updated: 26 July 2022; Ref: scu.250057
