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 interests of the patient. At common law a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force however small (‘other treatment’), without their consent. ‘[A]ny touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass’, but it is an essential element of the tort of battery that the application of force is without lawful excuse. The defence of necessity meant that it was lawful for such professionals and other carers to do what was in the best interests of a person who lacked the capacity to decide for himself whether it should be done.
The High Court has an inherent jurisdiction to make declarations in advance that a particular course of action would, or would not, be lawful in accordance with that principle
Orse : F (Mental Patient: Sterilisation), In re
Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Goff of Chieveley, Lord Jauncey of Tullichettle
 2 AC 1,  UKHL 1
Mental Health Act 1983
England and Wales
Cited – In re B (A Minor) (Wardship: Sterilisation) HL 1987
Paramount Consideration in Wardship Application
The House considered a case involving the sterilisation of a girl just under 18, who suffered from mental disability.
Held: A court exercising wardship jurisdiction, when reaching a decision on an application to authorise an operation for . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Appeal from – F v West Berkshire Health Authority CA 3-Feb-1989
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, . .
Cited – Cole v Turner 1704
For a touching of another’s person to amount to a battery, it had to be a touching ‘in anger’. . .
Cited – Regina v Coney QBD 18-Mar-1882
A public prize-fight was unlawful. Spectators were tried at Berkshire County Quarter Sessions with common assault. The Chairman of Quarter Sessions directed the jury to convict the spectators of common assault on the basis that having stayed to . .
Cited – Australasian Steam Navigation Co v Morse PC 1872
Sir Montague Smith: ‘when by the force of circumstances a man has the duty cast upon him of taking some action for another, and under that obligation, adopts the course which, to the judgment of a wise and prudent man, is apparently the best for the . .
Cited – Schloendorff v Society of New York Hospital 1913
(USA) The libertarian principle of self-determination allows that ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without the patient’s consent . .
Cited – Guaranty Trust Co of New York v Hannay and Co CA 1915
A claimant does not need to have a subsisting cause of action against a defendant before the court will grant a claimant a declaration. The court considered the ambiguity in the meaning of the word ‘jurisdiction’: ‘The first and, in my opinion, the . .
Cited – Russian Commercial and Industrial Bank v British Bank of Foreign Trade HL 1921
The court considered how the court should exercise any jurisdiction to make declarations.
Held: The House (Lord Dunedin) referred, with approval, to the approach taken by the Scottish Courts, identifying three propositions, namely that the . .
Cited – Prager v Blatspiel, Stamp and Heacock Ltd 1924
McCardie J spoke of the demand of an expanding society for an expanding common law. An agent must act bona fide in the interests of his principal. . .
Cited – Wilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Rex v Donovan CCA 1934
The defendant was convicted of indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. The complainant suffered actual bodily harm, though the defendant was not charged with an . .
Cited – Collins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
Cited – Vine v National Dock Labour Board HL 1957
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority . .
Cited – S v McC; W v W HL 1972
The distinction between the court’s ‘custodial’ and ‘protective’ jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter . .
Cited – Attorney-General’s Reference (No 6 of 1980) CACD 1981
The court considered a reference on a point of law as to whether consent could be a defence to a charge of assault arising out of a fight in a public place to which the other party consented.
Held: Lord Lane CJ said: ‘It is not in the public . .
Cited – In re D (A Minor) (Wardship: Sterilisation) 1976
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Ashley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.198139