Re S (Hospital Patient: Court's Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, KENNEDY AND MILLETT, L JJ
Medical treatment – jurisdiction – declaratory relief – patient a Norwegian national living in England with plaintiff prior to suffering severely disabling stroke – patient's family seeking to remove him to Norway – plaintiff wishing to care for patient herself and seeking declaration that his removal to Norway would be unlawful – whether court had jurisdiction to grant declaration sought – whether plaintiff had locus to invoke the court's jurisdiction – whether interlocutory injunction would be granted pending further investigation of patient's circumstances
The patient, a Norwegian national, married in 1945. He and his wife had one son, the defendant, born in 1947. The patient had considerable assets which included a number of bank accounts. His work took him around the world and his wife, who suffered from ill-health, remained in Norway. In 1989 he met the plaintiff, an Englishwoman. They became friends and she accompanied him on his trips. In May 1991 a house was bought in Leicester, where the plaintiff lived, and registered in her sole name. In 1992 the patient gave the plaintiff power of attorney in relation to three of his bank accounts. He still returned to Norway, but in March 1993 he moved in to the plaintiff's house in Leicester, leaving his business affairs in the hands of lawyers.
On 16 September 1993 he suffered a massive stroke as a result of which he was severely disabled with gross communication and comprehension difficulties, although he was able to express pleasure and displeasure at a simple level. He was admitted to a hospital in Leicester where in the middle of 1994 it was considered that he no longer needed hospital care. His family proposed to move him to a nursing home near Oslo and on 10 September 1994 the patient's son, the defendant, arrived with an ambulance to remove him from the country. The nursing staff became concerned as no official discharge papers had been prepared and they informed the police who stopped the ambulance. The plaintiff's legal advisers obtained an injunction and the patient was returned to the hospital.
The plaintiff sought declarations in her originating summons, inter alia, that it was not in the patient's interests to return him to Norway, that his removal from the jurisdiction would be unlawful and that it would be in his best interests that he be cared for in England. The plaintiff applied to add the patient's wife as a defendant and further sought an injunction restraining the defendants from removing him from the jurisdiction or returning him to Norway.
The Judge granted the plaintiff's applications in the terms sought and the defendants appealed.
Held – dismissing the appeal: (1) The law respected the rights of adults of sound mind to make their own decisions as to medical treatment. Where minors or adults of unsound mind are concerned, the law allowed for parents, next friends or guardians to speak for that person or child. Those rendered unconscious or inarticulate by illness or accident as with the patient in this case presented a less familiar problem. However, the courts would treat as justiciable any genuine question as to what was in the best interests of such a patient and could grant the declaratory relief sought in such circumstances.
(2) Where a serious justiciable issue was brought before the court by a claimant who could demonstrate a genuine and legitimate interest in obtaining a decision against an adverse party the court would not impose nice tests to determine the claimant's precise legal standing.
(3) The plaintiff had assumed the duty of providing for the patient's care, she had arranged for him to be treated in a private hospital. By virtue of that contract with the hospital, either as principle or as an agent for the patient, she remained authorized to ensure the performance of that contract unless it could be shown that it was in the best interests of the patient to change the arrangements for his care. In any event, if it were necessary for her to demonstrate a specific legal right which was liable to be infringed by the proposed action of the defendants, she had done so. She had demonstrated a genuine and legitimate interest, she was not an officious busybody or a stranger, she had assumed the duty of ensuring that the patient was cared for and the court would not insist on a demonstration of a precise legal right in such circumstances.
(4) The precise legal rights in question were those of the patient. He had a legal right to decide where and with whom he should live, although he was unable to articulate any preference it was not safe to assume that he had no wishes and emotions. The court had been asked to make a decision as to which party was acting in accordance with the patient's wishes and accordingly was seized with a serious justiciable issue. The plaintiff had correctly invoked the jurisdiction of the court and the court was bound to determine the issue she had raised.
Decision of Hale, J [1995] 1 FCR 637 affirmed.
Statutory provisions referred to:Mental Health Act 1983, s 26.
RSC Ord 15, r 16; Ord 53, r 3(7).
Supreme Court Act 1981, s 31(3).
Cases referred to in judgment:Airedale NHS Trust v Bland [1993] AC 789; [1994] 1 FCR 485; [1993] 2 WLR 316; [1993] 1 All ER 831.
C (Sterilization: Directions), Re [1990] FCR 716.
C (Adult Patient) (Access: Jurisdiction), Re[1994] 1 FCR 705.
F (Mental Patient: Sterilization), Re [1990] 1 AC 1; [1987] 2 WLR 1025; [1989] 2 All ER 545.
F v Riverside Mental Health NHS Trust[1994] 2 FCR 577.
Frenchay Healthcare NHS Trust v S[1994] 3 FCR 121.
GF (A Patient), Re [1991] FCR 786.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
Gouriet v Union of Postal Workers [1978] AC 435; [1977] 3 WLR 300; [1977] 3 All ER 70.
Guaranty Trust Co New York v Hannay & Co [1915] 2 KB 536.
Hanson v Radcliffe Urban District Council [1922] 2 Ch 490.
Malone v Metropolitan Police Commissioner [1979] Ch 344.
O'Reilly v Mackman [1983] 2 AC 237.
R v Stone [1977] QB 354.
Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800.
Ruislip-Northwood District Council v Lee (1931) 145 LT 208.
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438.
SG (A Patient), Re [1991] FCR 786.
South West Hertfordshire Health Authority v KB[1994] 2 FCR 1051.
T (Adult: Refusal of Treatment), Re [1993] Fam 95; [1992] 2 FCR 861; [1992] 3 WLR 782; [1992] 4 All ER 649.
Thorne Rural District Council v Bunting [1972] Ch 470; [1972] 2 WLR 517; [1972] 1 All ER 439.
W (An Adult) (Sterilization), Re[1993] 2 FCR 187.
James Munby, QC and Huw Lloyd for the plaintiff.
Sir Louis Blom-Cooper, QC and Witold Pawlak for the defendants.
Robert Francis, QC and Nicholas O'Brien for the Official Solicitor.
SIR THOMAS BINGHAM, MR.This appeal concerns a gentleman named S. S is a Norwegian citizen, aged 76, and a man of considerable wealth. While in England in September 1993 he suffered a severe and disabling stroke. Underlying the present appeal is a substantial question: whether the best interests of S are served by his returning to Norway, to be cared for in a nursing home outside Oslo, or by his remaining in England, either at the private hospital in which he is now a patient or at some other suitable place. The first of these courses is strongly favoured by S's wife and only son, the second and first defendants in these proceedings. The second course is strongly favoured by the plaintiff, a woman whose companionship and support S enjoyed in the years before his stroke. S himself is third defendant in the proceedings, represented by the Official Solicitor.
I describe that issue as the substantial issue underlying these proceedings. It is not the issue now before the court. The sole issue now before us is a procedural question concerning the standing of the plaintiff to invoke the jurisdiction of the court to grant declaratory relief. This is an important question going to the jurisdiction of the court, for if the plaintiff has no standing to claim declaratory relief the court has no jurisdiction to grant it.
S was born in Germany in 1918. He escaped to Norway in the 1930s and to England in 1941. In 1945 he married the second defendant, who is Norwegian. In 1947 the first defendant, their only son, was born. S lived with his wife and son in Norway. In 1948 S's father died and he inherited a considerable art collection. He has himself pursued a successful career in photography.
It appears that S's marriage, after the first few years, was never very close and it may be that as time passed it became more distant. In 1989 S met the plaintiff. They travelled round the world together and became close. In May of 1991 they set up house together in England, in a house bought with S's money but in the plaintiff's name. He had given to her a power of attorney entitling her to operate
some of his bank accounts.
Not surprising, S's relationship with the plaintiff was viewed with considerable distrust and suspicion by S's wife and son. The plaintiff herself, it would seem, was distrustful and suspicious of the motives of the wife and son. So, in very general terms, matters stood when S suffered his stroke in September 1993.
When that catastrophe occurred the plaintiff took prompt and appropriate action to secure the admission of S to a local general hospital and, after a short time, to the private hospital where he still is. She dealt with the payment of his account at the hospital under her power of attorney. She visited S very regularly and solicitously and showed close interest in his welfare. S's wife and son also visited although (because they lived in Norway) less frequently. Relations at the private hospital were not easy. The consultant in charge of S thought that he should communicate with S's wife and son as his next of kin and felt that the plaintiff had no standing to act for...
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