Re R (A Minor) (Wardship: Consent to Treatment)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,LORD JUSTICE FARQUHARSON |
| Judgment Date | 24 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0724-4 |
| Docket Number | 91/0776 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1991 |
[1991] EWCA Civ J0724-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE WAITE)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Staughton
Lord Justice Farquharson
91/0776
MR. J. L. MUNBY Q.C. (instructed by the Official Solicitor) appeared for the Appellant (Third Defendant).
MR. J. G. ROSENBLATT (instructed by Messrs. Farrell Matthews & Weir) appeared for the Respondent (Second Defendant).
MISS S. A. RITCHIE Q.C. and MR. C. N. GEEKIE (instructed by the Solicitor to the London Borough of Hammersmith & Fulham) appeared for the Respondent (Local Authority).
This appeal from an order of Waite J. on 9th July 1991 involves a consideration of the power of the court to override a refusal by its ward, a 15-year old girl, to undergo medical treatment involving the taking of medication. So far as is known such a question has arisen on only one previous occasion, namely in the case of Re E. (decided by Ward J. on 21st September 1990), a 15-year old boy who had religious objections, supported by his parents, to being given a life-saving blood transfusion. Possibly in that case, and certainly in this, the judge accepted that the effect of Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112 was that, if a child had achieved a sufficient understanding and intelligence to enable him or her to understand fully what was proposed and to be capable of making up his own mind on the matter, the parental right (and the court's right) to give or refuse consent yielded to the child's right to make his own decisions (see per Lord Scarman at pp. 186 and 189) and that this applied as much to a situation in which the child was refusing consent (this case and Re E.) as to the case in which the child was consenting (the assumed position in Gillick). However, in Re E., as in this case, the judge held that the child had not achieved the required degree of understanding.
There was some urgency and at the conclusion of the hearing we announced that the appeal would be dismissed. We could at the same time have given reasons for agreeing with the judge's decision on the facts as to the child's degree of understanding, which would have been determinative of this appeal on any view of the law. However, the Official Solicitor had asked us to give guidance on the extent of the court's powers in such situations and we therefore took time to put our reasons into writing. In dismissing the appeal we made an order that in reporting these proceedings there be no publication of the identity or whereabouts of the child, her parents, her carers or any institution in which the child was resident or being treated or educated.
The facts
I am indebted to Waite J. for a very full statement of the basic facts which I can summarise, largely in his words, as follows:
R. was born on 15th September 1975 and is therefore 15 years 10 months old. Her family had been known to the Social Services for over 12 years and at an earlier stage she had been on the local authority's At Risk Register as one who was thought to be a possible victim of emotional abuse. She was a child who gave rise to anxiety because of poor and sometimes violent parental relationships and difficulties generally in establishing boundaries in her life.
Those worries became more acute this year when, on 8th March 1991, she was received into voluntary care after a fight with her father. She claimed she felt it was unsafe to stay in the house with him. She was placed first with emergency foster parents and then at a children's home maintained by the local authority.
While in care she asked not to see her father and showed some ambivalence about her wish to return to live in the care of either parent. Anxiety developed about her mental health. She seemed often flat and expressionless and resistant to being touched by anyone. She appeared to experience visual and auditory hallucinations and sometimes suicidal thoughts. She was accordingly referred to a consultant child psychiatrist, Dr. R.
Early in May 1991 her mother went to the children's home and cancelled the voluntary care order under which she had been admitted. R. went back home but stayed only a few minutes and then ran off. She was found and returned to the children's home but then ran off again and was found by the police on a bridge over the River Thames threatening suicide. In these circumstances the local authority sought and was granted a five-day place of safety order. R. was then placed in a small children's home from which she absconded that night, being found by the police the following day at her parents' home.
An interim care order was granted on 24th May and R. was persuaded to return to the general children's home to which she had originally been admitted. Her behaviour however was increasingly disturbed. On the same night she had to be the subject of an emergency psychiatric assessment due to her increasingly paranoid and disturbed behaviour. The psychiatrist who saw her on that occasion was of opinion that she was ill enough to be the subject of an application under section 2 or section 3 of the Mental Health Act 1983. This view was confirmed by R.'s subsequent behaviour. She absconded from the children's home and went back to her own house where she ran amok doing serious damage to the building and furniture. She made a most savage attack on her father and also assaulted her mother. Thereafter she calmed down but her behaviour remained highly variable with substantial swings of mood. The downward swings became serious enough for an application to be made on 2nd June 1991 for her admission under section 2 of the Mental Health Act. She at once again absconded and attacked her parents, but this time in the presence of an emergency social worker and two psychiatrists.
She was placed in the psychiatric ward of a general hospital and remained there for one week. On 7th June 1991 she was discharged to a more suitable centre for the treatment of someone of her age, namely an adolescent psychiatric unit ("the unit") which specialises in disturbance problems in young people of her age.
When the social worker principally concerned with R. attended a case review at the unit she was given a disturbing account of R.'s progress there. The senior Registrar and Director of Child Psychiatry stated that concern was growing over R.'s mental health to the extent that serious thought was being given to the use of compulsory medication because she was becoming increasingly defiant. Furthermore she was denying her past experience of hallucinations and voices, alleging that she had made it all up. The social worker was advised by the staff of the unit that they had been using sedation from time to time whenever they felt the situation warranted it, but that had always been done with R.'s consent. When the social worker asked R. about this, she replied that she had given her consent because she felt she had no choice, since if she had refused they would have injected her with drugs anyway.
Eventually matters came to a head in events which gave rise to R. becoming a ward of court and to the application granted by Waite J. On 28th June 1991 the social worker received a telephone call from a senior consultant at the unit stating that he believed R. to be in a psychotic state and that he wanted the permission of the local authority, as the body exercising legal responsibility for R. under the care order, to administer anti-psychotic medication to her. The consultant assured the social worker that this was not a decision taken out of the blue, advising her that R. was acting extremely paranoid, becoming extremely argumentative, hostile and accusative.
After consulting higher authority within the social services, the social worker telephoned back to the unit giving the local authority's consent to the administration of such medication as the medical authorities of the unit might think necessary.
Later that evening R. herself telephoned the social services night duty department. She advised the duty social worker (who happened to be experienced in problems of this kind, being an approved social worker under the Mental Health Act) that the unit were trying to give her drugs. She said she did not need them and she did not want to take them. It was a very long conversation indeed lasting some three hours. The social worker decided that R. sounded lucid and rational and he did not rgard her as "sectionable", i.e., liable to be made the subject of an application under section 2 or section 3 of the Mental Health Act 1983. Urgent consultation took place within the social services department and as a result a decision was taken that, on reflection, the local authority could not give the necessary permission for R. to have the drugs administered to her against her will.
On 3rd July 1991 R. was again seen by Dr. R., the consultant child psychiatrist. R. admitted to him that she had been suffering from labile mood swings, fewer suicidal ideas than previously, and visual and auditory hallucination, although not so frequent or persecuting as before. She behaved calmly and was rational.
Dr. R. reported that:
"I believe that she still requires treatment as an inpatient, but she has improved sufficiently for the Mental Health Act not to be relevant. She also needs to be involved in later planned assessment for care proceedings. She is of sufficient maturity and understanding to comprehend the treatment being recommended and is currently rational. Should she not continue with the [unit] treatment her more florid...
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