Re Sl (Adult Patient) (Medical Treatment)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Court | Family Division |
Medical treatment – Adult – Mental incapacity – Patient suffering heavy menstrual bleeding – Future risk of pregnancy – Disagreement between experts as to appropriate form of treatment – Whether court should authorise sterilisation or subtotal hysterectomy – Whether alternative form of treatment.
The mother of a 28-year-old woman, S, who suffered from severe learning disability, issued an originating summons seeking a declaration from the court that it was in her daughter’s best interests to undergo an operation of sterilisation and/or hysterectomy. The mother, who was responsible for S’s day-to-day care, was finding caring for her increasingly difficult and it was envisaged that in due course she would go into sheltered accommodation. However there were two interrelated aspects of S’s care which particularly worried the mother, and which had prompted the present application. The first was that S suffered from heavy menstrual bleeding, which she did not understand, which caused her distress, and with which she had great difficulty coping. The second was the mother’s anxiety that, away from her close and careful supervision, S, who was an extremely attractive young woman, would form an emotional attachment with a man resulting in sexual intercourse or pregnancy, or that she might become pregnant as a result of a man either taking advantage, or raping, her. S was made a party to the proceedings and was represented by the Official Solicitor, who opposed the application contending that the risk of pregnancy was speculative and that there was insufficient evidence for the court to find that there was an identifiable risk, and he proposed the fitting of a Mirena coil as the most effective form of contraception for S. At the hearing, whilst the experts were unanimous in their agreement that S lacked the capacity to give an informed consent to treatment of any kind and that pregnancy would be disastrous for her, they disagreed as to the appropriate form of treatment. The medical evidence given by two of the experts in the round favoured the fitting of the Mirena coil, which had to be fitted under general anaesthetic and lasted about five years, to be followed, if that device proved ineffective, by laparoscopic subtotal hysterectomy.
Held – (1) Whilst it was unnecessary to apply to the court for a declaration as to the lawfulness of a hysterectomy operation where there was no practicable alternative treatment, where, as in the present case, there was a debate about the appropriateness of a hysterectomy and there were alternative means of treatment, it was appropriate for an application to be made to the court for a declaration that a hysterectomy operation was in the best interests of the patient, and that the court should decide what treatment was in the patient’s best interests. Plainly a court
could not declare lawful a course of action which ran counter to established medical ethics; but it was entitled to declare lawful a particular course of treatment if that treatment was itself proper and in the interests of the patient, even if it was not the doctors’ first choice.
(2) The present case raised two separate, but closely related issues. The first was whether it was in S’s interests to be sterilised in order to avoid the risk of pregnancy, and the proposed sterilisation, which was not required for therapeutic or treatment purposes, fell to be decided under the criteria laid down in Re F (mental patient: sterilisation) [1990] 2 AC 1. The second was whether it was in her interests to undergo therapeutic treatment to eliminate her menstrual periods by way of laparoscopic subtotal hysterectomy, an operation which would have the incidental consequence of sterilisation. That question fell to be decided by reference to the best interests of the patient, but with two additional considerations, namely was the treatment necessary for therapeutic purposes and was there a practicable less intrusive means of testing S’s particular condition, ie her heavy periods. The experts were unanimous that it would be highly detrimental to S’s welfare were she to become pregnant, and since it was highly probably that S would start to form affectionate relationships once away from her mother’s care, there was, on all the evidence, an identifiable risk of pregnancy. However, whilst sterilisation would protect S from pregnancy it would not otherwise benefit her, and 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 came down against sterilisation being in S’s interests. What S required was treatment for her periods which resulted in total cessation, and contraception was an important, but secondary factor. Although there was a treatment which was less invasive than laparoscopic subtotal hysterectomy, namely the Mirena coil, on the facts of the present case, the Mirena had a number of disadvantages which it would not have in the case of a woman of normal intelligence, and above all it would require S to undergo a series of general anaesthetics during the remainder of her fertile life. The laparoscopic subtotal hysterectomy was one operation for which her mother and family were available and only required a short stay in hospital. Accordingly, the laparoscopic subtotal hysterectomy was appropriate therapeutic treatment and the alternative, the Mirena, whilst undoubtedly lawful, was less appropriate and did not fully meet S’s needs. Treatment by Mirena did not require a declaration by the court that it was lawful; but performing the laparoscopic subtotal hysterectomy did require a declaration as to its lawfulness and that was the declaration that the court would make.
Cases referred to in judgmentBolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.
F (mental patient: sterilisation), Re [1990] 2 AC 1, [1989] 2 WLR 1025; sub nom F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545, [1989] 2 FLR 376, HL.
GF (medical treatment), Re [1991] FCR 786, [1992] 1 FLR 293.
Z (medical treatment: hysterectomy), Re[2000] 1 FCR 274.
Originating summonsOn 26 November 1998 the mother of a 28-year-old woman with severe learning disability, issued an originating summons seeking a declaration from the High Court that it was in her daughter’s best interests to perform an operation of sterilisation and/or hysterectomy. The case was heard in chambers and the judgment was handed down in open court. The facts are set out in the judgment of Wall J.
Lesley Newton (instructed by Widdows Mason) for the mother.
Susan Harrison (instructed by the Official Solicitor) for S.
Cur adv vult
24 January 2000. The following judgment was handed down.
WALL J.The claimant in these proceedings, Mrs L, is the mother of a young woman, S, who was born on 24 June 1971 and is thus 28. S has severe learning disability, the cause of which is unknown. S is incapable of managing and administering her own affairs, and is, accordingly a patient within the meaning of Pt 21 of the Civil Procedure Rules 1998, SI 1998/3132.
By an originating summons issued on 26 November 1998, Mrs L seeks the following relief namely—
‘(1) 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
(2) 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 is a party to the proceedings and is represented by the Official Solicitor, who has investigated the matter with his customary care, thoroughness and efficiency, and to whom I am accordingly grateful. In the event, for reasons which I shall explain, the Official Solicitor, on behalf of S, opposes the application.
The case in outlineMrs L is a widow. Her husband died in 1989. She has three adult children, of whom S is the second. S has an elder brother, D, now 31. D, like S, suffers from severe learning disability and, since the death of Mrs L’s husband, has been living in sheltered accommodation provided by the local authority. S also has a younger sister, VC, who is not so disabled. VC is married and has two young children aged four and one. VC has sworn an affidavit in the proceedings supporting the application.
S lives with Mrs L, who is responsible for her day-to-day care. S currently attends a local day-centre five days a week from 9.30 a m to 3.00 p m, and she also attends a social club for people with disabilities on one evening a week. Mrs L is provided respite care during one weekend per month. However, Mrs L is now 54 and finds caring for S increasingly difficult. She told me that in due course there will be no alternative but for S to go into accommodation similar to that currently provided by the local authority for D. Mrs L has already been in contact with the social services department of the local authority and her belief is that S will be given a permanent placement within about 12 months.
Despite her disabilities, S enjoys a number of social activities. She likes swimming and horse-riding. She also enjoys going to the local day-centre and the social club. She enjoys shopping and is interested in clothes.
However, S is not an easy person to care for. She has very limited speech. She is prone to mood swings. There are, moreover, two interrelated aspects of S’s care which particularly worry Mrs L, and which have prompted the present application.
The first is that S suffers from heavy menstrual bleeding, which she does not understand, which causes her distress and with which she has great difficulty coping. The second is Mrs S’s anxiety that, away from the close and...
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