Re S (Sterilisation: Patient's Best Interests)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE THORPE,LORD JUSTICE MANCE |
| Judgment Date | 18 May 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0518-13 |
| Docket Number | Case No. FAFMF/2000/0104/B1 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2000 |
[2000] EWCA Civ J0518-13
The President
Lord Justice Thorpe and
Lord Justice Mance
Case No. FAFMF/2000/0104/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HONOURABLE MR. JUSTICE WALL
Royal Courts of Justice
Strand,
London
WC2A 2LL
James Munby Q.C. and Miss Susan Harrison (instructed by the Official Solicitor of the Supreme Court) for the Appellant
David Harris Q.C. and Miss Lesley Newton (instructed by Widdows Mason, 20 King Street, Leigh, WN7 4LR) for the Respondent
Miss SL, (S), is a very attractive young woman of 29, born on the 24 th June 1971. She has the misfortune to have been born with severe learning difficulties and is unable to live on her own in the community. She is incapable of managing her own affairs and lives with her mother, (Mrs L) who has cared devotedly for her since her birth. She has a younger sister of normal intelligence who is married with a family and an elder brother who also has the misfortune to suffer from severe learning disabilities. Since the death of her father, her brother has lived in sheltered accommodation provided by the local authority. Her mother is now about 55 and recognises that she cannot indefinitely care for S and that her daughter will have to go into accommodation similar to that provided for her son.
The mother therefore issued proceedings by way of originating summons asking the High Court to make a declaration in the following terms:
A declaration that the operation of sterilisation and/or hysterectomy proposed to be performed on S being in the existing circumstances in her best interests can lawfully be performed on her despite her inability to consent to it; and
An order that in the event of a material change in the existing circumstances occurring before the said operation has been performed any party shall have liberty to apply for such further or other declaration or order as may be just.
S has been represented by the Official Solicitor who opposed the application. The originating summons was heard by Wall J who gave judgment on the 24 th January 2000. He granted the declaration sought for therapeutic purposes and gave permission to appeal.
His judgment has been reported as re SL (Adult Patient) (medical treatment) [2000] 1 FCR 361 and as re S (Sterilisation: Patient's Best Interests) [2000] 1 FLR 465. It is not therefore necessary to set out the facts and issues in any detail since they are carefully and comprehensively presented by Wall J. Suffice it to say that S follows a regular routine in her mother`s home. She attends a day centre and a social club and enjoys physical activities including riding and swimming. She is not easy to care for. She has very limited speech and is prone to irritability and mood swings. There are two interrelated aspects of her care which have prompted the application by the mother. The first reason might be termed the social reason. As I have already said, S is an extremely attractive girl who is at present being cared for by her mother who keeps a close watch on her activities and supervises her. If she goes into a local authority home there is a risk that she might move unsupervised in mixed circles and might either form a close emotional attachment or be the victim of a sexual assault with the possibility of a pregnancy. The evidence before the judge was that she would not be able to understand the concept of pregnancy and would be totally unable to cope with a child. The judge said that it was agreed that a pregnancy would be disastrous for her and the whole process would be frightening and traumatic.
The second reason is therapeutic. The judge said:
"S suffers from heavy menstrual bleeding which she does not understand, which causes her distress and with which she has great difficulty coping."
It was common ground that S did not have the capacity to give an informed consent to treatment of any kind, in particular for the proposed hysterectomy.
The two issues before the judge were therefore
whether it was in the best interests of S to be sterilised in order to avoid the risk of pregnancy and
whether it was in her best interests to undergo therapeutic treatment to eliminate her menstrual periods by way of laparoscopic subtotal hysterectomy, which would have the incidental effect of sterilisation.
He heard evidence from the mother and other members of the family and from Dr E, a consultant psychiatrist, Dr K, a senior lecturer/honorary consultant in family planning, and Professor T, professor emeritus of obstetrics and gynaecology. On the first issue the judge came to the conclusion that it would be highly detrimental to S`s welfare to become pregnant. He said:
"Although the point is finely balanced, I am satisfied on all the evidence that there is in this case an identifiable risk of pregnancy. On this point, I prefer the evidence of Dr K and Professor T to that of Dr E. I accept that in her mother`s day-to-day care the risk of pregnancy is remote; but that situation is shortly to change. The absence of her mother and the inevitably reduced level of supervision will increase her vulnerability to an exploitative relationship, as well as increasing the probability that she will seek affection from others……….
I have reached the clear view that it would not be in S`s interests to undergo sterilisation. Although there is a risk of pregnancy, the operation would not address the question of her menstruation. Moreover, there is another form of contraception available, the Mirena which, whilst it would require a general anaesthetic for its insertion, would have the likely beneficial side effect of reducing her menstrual flow. Sterilisation, accordingly, would protect S from pregnancy but would not otherwise benefit her. In balancing the risks of a surgical operation to sterilise S, the likely effect on S of having to undergo surgery, the risk of pregnancy and the benefits to be derived from sterilisation, the balance, in my judgment, comes down against sterilisation being in S`s interests."
Mr Munby QC for the Official Solicitor, who appeals on behalf of S on the second issue, doubts whether the judge was right, on the facts, to find an identifiable risk of pregnancy. I share his doubt but it is not necessary to consider it since the appeal does not turn on the issue of sterilisation as such.
I turn therefore to the second issue and the facts about the proposed therapeutic treatment. A laparoscopic sub-total hysterectomy was described by Professor T and set out in detail in the judgment of Wall J at page 473. In summary, it was described as major invasive surgery but far less severe than a total hysterectomy and there would be less complications and blood loss and faster recovery. The patient would be expected to leave hospital within three days or so.
The alternative treatment was to use a Mirena coil which, once inserted by general anaesthetic, would have the effect of significantly reducing the menstrual flow so that, after about three months, it would be minimal or stop altogether. The coil had an useful life, as a contraceptive device, of five years or so after which it would have to be replaced. It had the disadvantage that it might be dislodged and would then have to be reinserted.
The evidence before the judge on this part of the appeal was, on the one hand, the medical evidence of the three expert medical witnesses and, on the other hand, the non-medical evidence of the family and other carers about the adverse effects of her menstrual periods. The judge found that S had an obsession with cleanliness and bodily functions. Her menstrual cycle caused her distress. She regarded it as dirty. For example she was upset when she had a spot of blood on her skirt. The judge considered whether the mother and other witnesses were exaggerating for effect and said:
"I am in no doubt at all that the descriptions given to me by Mrs L, CH and VC are accurate, and I accept their evidence that the quality of S`s life would be radically improved if her periods ceased. I am also of the view, given the unanimous evidence of the experts as to the disastrous effects on S of becoming pregnant, that her periods serve no purpose, and that it is in her interests for them to be brought to an end. The question, therefore, is how that should be achieved."
He also found that S had a phobia about hospitals dating from visiting her father in hospital before his death. Any treatment would require a general anaesthetic and a hospital visit that S would find distressing.
The alternatives that he considered were —first, the Mirena coil and second, surgery. Each replacement of the coil during her child-bearing period would require a general anaesthetic and, he found, would be accompanied by distress for S. The mother took the view, which the judge accepted, that the major advantage of the hysterectomy was that it was a single procedure without the need for any further surgical intervention. He said:
"In my judgment, S`s hospital phobia, and the need for all interventions to be by way of general anaesthetic is a powerful argument in favour of a once and for all procedure such as the laparoscopic subtotal hysterectomy."
I turn now to the medical evidence on this issue. The judge did not accept the evidence of Dr E, the consultant psychiatrist, about the adverse psychological effect of the hysterectomy operation on S. The Official Solicitor supported the concerns of Dr E, but the judge held
"In my judgment, the likely effects of surgery on S are not such as to render it contrary to her interests if, on the other side of the equation, there...
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