swarb.co.uk - law index
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Health - From: 1985 To: 1989
This page lists 18 cases, and was prepared on 27 May 2018.
Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1985] 2 WLR 413
1985
CA
Eveleigh, Fox and Parker L.JJ
Health, Children
The court granted to the claimant a declaration as to the unlawfulness of guidance to Health Authorities that it was possible to provide contraceptive advice and treatment to her daughters when under 16 and without her express consent.
1 Cites
1 Citers
In Re E (Mental Health Patient) [1985] 1 WLR 245
1985
Health
Application for an order with regard to a mental health patient's property.
1 Citers
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All ER 643; [1985] 2 WLR 480; [1985] AC 871; [1985] UKHL 1
21 Feb 1985
HL
Lord Templeman, Lord Diplock, Lord Scarman, Lord Keith
Health, Torts - Other, Negligence
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 consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
However, where a patient does not ask as to the risks, Lord Diplock said: "we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient's physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied." and "a doctor's duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all." ."
Lord Scarman said: "Damage is the gist of the action of negligence"
1 Cites
1 Citers
[ Bailii ]
Hart v O'Connor and O'Connor [1985] 1 AC 1004; [1985] UKPC 1
22 Apr 1985
PC
Lord Brightman, Lord Scarman, Lord Bridge of Harwich, Sir Denys Buckley
Contract, Commonwealth, Health
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind. Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by the same standards as a contract by a person of sound mind, and is not voidable by the lunatic or his representatives by reason of "unfairness" unless such unfairness amounts to equitable fraud which would have enabled the complaining party to avoid the contract even if he had been sane.
Lord Brightman: "In the opinion of their Lordships it is perfectly plain that historically a court of equity did not restrain a suit at law on the ground of "unfairness" unless the conscience of the plaintiff was in some way affected. An unconscionable bargain in this context would be a bargain of an improvident character made by a poor or ignorant person acting without independent advice which cannot be shown to be a fair and reasonable transaction. "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of power arising out of the circumstances and conditions" of the contracting parties; Earl of Aylesford v Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances." To accept the proposition enunciated in Archer v. Cutler that a contract with a person ostensibly sane but actually of unsound mind can be set aside because it is "unfair" to the person of unsound mind in the sense of contractual imbalance, is unsupported by authority, is illogical.
1 Cites
1 Citers
[ Bailii ]
Ashingdane v The United Kingdom; ECHR 28-May-1985 - 8225/78; (1985) 7 EHRR 528; [1985] ECHR 8; 14/1983/70/106; [1985] ECHR 8
Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security; HL 17-Oct-1985 - [1985] 3 All ER 402; [1986] AC 112; [1985] 3 WLR 830; [1985] UKHL 7; [1986] 1 FLR 229
Regina v Hallstrom and another, ex parte W (No 2) [1986] QB 1090
1986
McCullough J
Health, Judicial Review
A judicial review application by a mental patient, requires the permission of a High Court judge: "There is ... a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention."
1 Citers
Winch v Jones [1986] QB 296
1986
CA
Sir John Donaldson MR
Health, Litigation Practice
The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: "section 139 protects the defendant unless and until the applicant obtains leave. This in itself is an added protection of considerable value [over and above the ordinary strike out provisions]. As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of the process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the [Mental Health] Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant's complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed." and "To be more specific, there are two fundamental difficulties. First, mental patients are liable, through no fault of their own, to have a distorted recollection of facts which can, on occasion, become pure fantasy. Second, the diagnosis and treatment of mental illness is not an exact science and severely divergent views are sometimes possible without any lack of reasonable care on the part of the doctor."
Mental Health Act 1983 8139
1 Citers
Ex parte Waldron [1986] 1 QB 824
1986
CA
Ackner, Neill and Glidewell LJJ
Health, Litigation Practice
The court was asked whether section 139 precluded a mental patient from applying for leave to move for judicial review. Held. A restriction on the bringing of civil or criminal proceedings imposed by the section 139 did not apply to proceedings for judicial review. Ackner LJ concluded that Parliament had not intended to bar the court's supervisory jurisdiction "because, had it done so, there would indeed have been no remedy to quash a compulsory admission to hospital made a result of a reasonable misconstruction of a public official's powers" and that this "would have disclosed a serious inadequacy in the power of the courts to protect the citizen from an actual or potential loss of liberty arising out of a serious error of law."
Mental Health Act 1983 139
1 Citers
In re B (A Minor) (Wardship: Sterilisation); HL 1987 - [1988] AC 199; [1987] 2 All ER 206; [1987] 2 WLR 1213; Gazette, 13 May 1987
White v Fell Unreported, 12 November 1987
12 Nov 1987
Boreham J
Health, Litigation Practice
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence. Held: There are three features to which it is appropriate to have regard when assessing a person's mental capacity: "The expression 'incapable of managing her own affairs and property' must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided . . . It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice . . . Secondly, having identified the problem it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately . . . Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive."
1 Citers
Regina v Oxford Regional Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department (Campbell's Case); HL 1988 - [1988] AC 120
Re K (Enduring Powers of Attorney), In re F [1988] Ch 310
1988
ChD
Hoffmann J
Agency, Litigation Practice, Health
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself incapable by reason of mental disorder of managing her property and affairs at the time that she executed the power. For a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act. In the context of litigation, the test to be applied is: "whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings." There is no logical reason why a person who understands that something needs to be done, but who does not have the requisite understanding to do it for himself, should not confer on another the power to do what needs to be done.
Hoffmann J said: "there is no logical reason why, though unable to exercise her powers, [the donor] could not confer them upon someone else by an appropriate juristic act. The validity of that act depends on whether she understood its nature and effect and not on whether she would hypothetically have been able to perform all the acts which it authorised." and
"I do not think that it would be sufficient if he realised only that it gave Cousin William power to look after his property. Mr Rawson [counsel instructed by the Official Solicitor] helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power. First (if such be the terms of the power) that the attorney will be able to assume complete authority over the donor's affairs. Secondly (if such be the terms of the power) that the attorney will in general be able to do anything with the donor's property which he himself could have done. Thirdly, that the authority will continue if the donor should be or become mentally incapable. Fourthly, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept Mr Rawson's summary as a statement of the matters which should ordinarily be explained to the donor (whatever the precise language which may be used) and which the evidence should show he has understood."
1 Citers
Black v Forsey 1988 SC (HL) 28
20 May 1988
HL
Health
The common law was called in aid to supplement the statutory power of compulsory detention to fill a lacuna which had appeared in the 1984 Act. Held: The common law could not be invoked for that purpose, because the powers of detention conferred upon hospital authorities under the 1984 Act were intended to be exhaustive. The plaintiff mental patient, who had originally been detained under section 26 had then been unlawfully detained when on the expiry of that admission order, the hospital purported to detain him under a further section 26 order notwithstanding that the Act specifically prohibited successive periods of detention under section 26.
Mental Health (Scotland) Act 1984
1 Citers
Nielsen v Denmark [1988] ECHR 23; 10929/84; (1988) 11 EHRR 175
28 Nov 1988
ECHR
Human Rights, Health
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother's request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, as the ward in which he was placed was a closed ward, he was unable to receive visitors except with the agreement of the staff, special permission was required for him to make telephone calls and for persons outside the hospital to get into contact with him and he was under almost constant surveillance. Held: It did not follow that the case fell within the ambit of article 5. The restrictions that were imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in article 5(1). He was not detained as a person of unsound mind so as to bring the case within paragraph (e). He was there at the request of his mother, as to whom there was no evidence of bad faith. "It should be observed at the outset that family life in the Contracting States incorporates a broad range of parental rights and responsibilities in regard to the care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorize others to impose, various restrictions on the child's liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules, which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities is reconsidered by the [ECHR] in particular by article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life"
European Convention on Human Rights 5(1)
1 Citers
[ Worldlii ] - [ Bailii ]
In re C (A Minor) (Wardship: Medical Treatment) [1989] 2 All ER 782; [1989] 3 WLR 240; [1990] Fam 26
1989
CA
Children, Health
1 Cites
1 Citers
Regina v Birch; CACD 1989 - (1989) 11 Cr App R (S) 202
In re F (Mental Patient: Sterilisation); HL 4-May-1989 - [1990] 2 AC 1; [1989] 2 WLR 1025; [1989] 2 All ER 545, CA and HL(E)
