F v Riverside Mental Health NHS Trust
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Family Division |
Wall, J
COURT OF APPEAL
25 October 1993
Sir Stephen Brown, P, Leggatt and Steyn, L JJ
Medical treatment – adult patient suffering from anorexia nervosa – patient's condition critical and life endangered – ex parte application for declaration that compulsory feeding lawful – Judge making declaration but ordering inter partes hearing five days later – no power to make interim declaration – whether declaration as ordered amounted to an interim declaration.
A woman aged 37 was in hospital and detained for treatment under s 3 of the Mental Health Act 1983. She was suffering from anorexia nervosa. As a result of this mental disorder her weight loss was extreme and if she did not eat her life would be endangered. The hospital applied for a declaration that compulsory feeding of the patient was lawful in the existing circumstances. On 20 October 1993 the matter came before Stuart-White, J. He held that compulsory feeding was medical treatment for the patient's mental disorder and made a declaratory order that compulsory feeding of this patient was lawful. However, he went on to order an inter partes hearing on 25 October 1993.
On 22 October 1993 the matter came before Wall, J on an application by the patient to set aside the order of Stuart-White, J. It was submitted on her behalf that the order made by Stuart-White, J was in form and substance interim declaratory relief and that there was no jurisdiction to make such an order. Alternatively, it was submitted, if the order were to be construed as a final declaration, it was wrong in principle to make a final declaration ex parte. Wall, J accepted that the court did not have power to grant interim declaratory relief, but held that, where failure to act could lead to the death or permanent injury to the person who was the subject of the application, the court could make a final declaration ex parte. This, Wall, J found, was what Stuart-White, J had done. Consequently, Wall, J held that the order of Stuart-White, J was properly made. Further, Wall, J held that it stood until set aside; that, as it was an ex parte order, it could be set aside by the court
under RSC Ord 32 r 6 on a subsequent ex parte or inter partes application; that there was no need to appeal; and that the proper course in the present case was for the patient to apply to set aside the ex parte order. In those circumstances, Wall, J refused to set aside the order of Stuart-White, J except in so far as it required the parties to attend before the Judge on 25 October 1993. Wall, J directed that the patient's application to set aside the order of 20 October 1993 be heard on a date to be fixed.
The patient appealed.
Held – allowing the appeal: There was no such concept known to the law as an interim declaration. It was clear that, in the circumstances of the present case, in the order of 20 October 1993 the Judge did, in effect, seek to make an interim declaration. It could not be regarded as a final declaration in the light of the fact that the declaratory order contained the provision that there was to be an inter partes hearing some five days later on 25 October. Therefore, the order was made without jurisdiction and would be set aside.
Statutory provisions referred to:Children Act 1989, s 8.
Mental Health Act 1983, ss 34 and 63.
RSC Ord 32 r 6.
Cases referred to in judgments:F (Mental Patient: Sterilization), Re [1990] 2 AC 1; [1989] 2 WLR 1025; sub nom F v West Berkshire Health Authority [1989] 2 All ER 545.
R (A Minor) (Medical Treatment), Re[1993] 2 FCR 544.
S (An Adult: Medical Treatment), Re[1992] 2 FCR 893; [1993] Fam 123; [1992] 3 WLR 806; [1992] 4 All ER 671.
FAMILY DIVISION22 October 1993
Richard Gordon for the patient.
Simon Readhead for the hospital.
JUDGMENTMr Justice Wall. This is an application, made ex parte but on notice, by Miss F (the respondent) to set aside declarations themselves made ex parte by Stuart-White, J on 20 October 1993 on the application of the Riverside Mental Health NHS Trust (the applicant). The orders made by the Judge are in the following terms:
"(1) Forced feeding of the respondent is medical treatment for her mental disorder under the provisions of s.63 of the Mental Health Act 1983.
(2) Further, or alternatively, that spoon feeding the respondent by a nurse without restraint is lawful.
(3) Further, or alternatively, that spoon feeding by a nurse with another female nurse restraining the patient is lawful.
(4) Further, or alternatively, if the respondent refuses to accept food by spoon or insufficient food to improve her weight and BMI level, that it is lawful to sedate her and feed by her naso-gastric tube under the direction of appropriately trained medical staff.
(5) [An order as to costs.]
(6) All parties are required to attend before the Judge in Chambers at the Central Office, Royal Courts of Justice, Strand, London, WC2A 2LL on Monday 25 October 1993 at 10.30 a.m. (time estimate one hour)."
The evidence contained in the unsworn affidavit of Dr Robinson disclosed that the respondent is 37 and is suffering from anorexia nervosa. She is currently in hospital and detained for treatment under s 3 of the Mental Health Act 1983. I do not propose to rehearse the evidence contained in Dr Robinson's affidavit or in the oral evidence he gave to the Judge. Suffice it for the purposes of this judgment that there was evidence before the Judge: (a) that anorexia nervosa was a mental disorder within the Mental Health Act; (b) that feeding the respondent constituted treatment; (c) that if the respondent did not eat her life would be endangered; and (d) that the respondent's condition was critical. On this evidential basis the Judge held that forced feeding if needed...
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