Re Z (Medical Treatment: Hysterectomy)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Year | 2000 |
| Date | 2000 |
| Court | Family Division |
Medical treatment – Adult – Mental incapacity – Patient suffering extremely heavy and painful menstrual periods – Future risk of pregnancy – Whether in patient’s best interests to undergo laparoscopic subtotal hysterectomy.
Z, who was now 19 years old, suffered from Down’s syndrome. When she was 12 years old she started menstruation and her periods were heavy, painful and irregular. To regularise her menstrual periods Z started taking the oral contraceptive pill, but it did nothing for the heaviness or the pain, both of which caused Z great discomfort and distress and were likely to continue. Z also had great difficulty in coping with personal hygiene as a result of her periods. Z was beginning to make an independent life for herself outside the family and it was anticipated that eventually she would move to a small residential unit either full-time or for respite care. Z was attracted to men and presently had a boyfriend who also suffered from Down’s syndrome and the mother recognised that Z might, and probably would, have a sexual relationship in the future. On 7 August 1996 the mother, acting as Z’s next friend, issued an originating summons seeking a declaration from the High Court that it was in Z’s best interests to undergo a laparoscopic subtotal hysterectomy. The Official Solicitor submitted that although there was a risk of pregnancy, major surgical procedures were not in Z’s best interests, and the fitting of an Mirena intra-uterine device, which would reduce the amount and duration of the menstrual bleeding, was the most appropriate form of contraception. At the hearing the four experts called to give evidence gave conflicting opinions as to the appropriate form of treatment in Z’s case.
Held – The issue before court was whether or not it was in Z’s best interests to undergo the proposed surgery, which necessitated the resolution of two further issues, namely (a) was it in Z’s best interests for there to be a complete cessation of her periods, and (b) was it in her best interests for there to be a complete protection from pregnancy. The responsibility for that assessment fell on the court alone: experts had to be listened to with respect, but their opinions had to be weighed and judged by the court. Since Z’s periods brought her nothing but misery, pain and discomfort and served no useful purpose either reproductively or emotionally, it was in her best interests that her periods should cease altogether. Were Z to become pregnant she would be incapable of raising a child and the trauma of pregnancy, child birth and the
inevitable removal of her child would be a catastrophe for her. Furthermore, if she had to undergo an abortion the psychological and emotional fallout would be disastrous. Therefore, the risk of pregnancy had to be removed completely. The subtotal hysterectomy would not only dramatically improve Z’s quality of life by eliminating her menstrual periods, but also give her total protection from pregnancy. Accordingly, it was in the best interests of Z that she undergo a laparoscopic subtotal hysterectomy and the mother’s declaration would be granted.
Cases referred to in judgmentF (mental patient: sterilisation), Re [1990] 2 AC 1; sub nom F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545, [1989] 2 WLR 1025, [1989] 2 FLR 376, HL; affg [1990] 2 AC 1, [1989] 2 FLR 376, CA.
W (an adult: sterilization), Re [1993] 2 FCR 187, [1993] 1 FLR 381.
X (adult patient: sterilisation), Re [1999] 3 FCR 426, [1998] 2 FLR 1124.
Originating summonsThe mother of a 19-year-old woman who suffered from Down’s syndrome, issued an originating summons seeking a declaration from the High Court that it was in the woman’s best interests to undergo a laparoscopic subtotal hysterectomy. The case was heard and judgment was given in chambers. The case is reported with the permission of Bennett J. The facts are set out in the judgment.
Pamela Scriven QC and Lesley Tapson (instructed by Smith Gadd & Co) for the mother.
Caroline Harry Thomas for the Official Solicitor.
BENNETT J.Z was born on 6 April 1980 and is therefore now 19 years old. Her mother (next friend) is RM. Her father has had no contact with her since 1992. The mother and the father have three other children, now aged 24, 22 and 16. On 13 May 1997 the mother was remarried to Mr F. He has two children, aged 15 and 12. The mother and Mr F live together with Z, her brothers and step-brothers.
Z has Down’s syndrome. Miss Scriven QC, on behalf of Z’s mother, submits that Z should undergo surgery, that is to say a hysterectomy, because (1) it is in Z’s best interests for her menstrual periods to cease altogether because of the significant distress and disturbance they cause her; (2) she is at risk of pregnancy and the consequences of any such pregnancy would result in substantial trauma and psychological damage to her. She would be unable to care for any child she gave birth to. It is therefore in her best interests for all risk of pregnancy to be avoided.
The hysterectomy operation which it is proposed Z should undergo is called a laparoscopic subtotal hysterectomy. Mr Adam Magos, a consultant
obstetrician and gynaecologist at the Royal Free Hospital in Hampstead, describes it thus:
‘Procedure of Subtotal Hysterectomy.
(1) Subtotal (supracervical) hysterectomy involves surgical excision of the body of the uterus (womb) but sparing of the cervix. The fallopian tubes and ovaries are also conserved. The procedure is traditionally carried out by laparotomy (open abdominal surgery), but can also be done via the vagina in suitable cases. Pertinent to this case, in recent years the procedure of laparoscopic subtotal hysterectomy has also been described as a less traumatic option than conventional surgery. It is this procedure which may well be the optimum mode of management in the case of [ZM].
(2) Laparoscopic subtotal hysterectomy is done using a laparoscope (a small telescope usually inserted immediately under the belly button), and 2 or 3 miniature instruments which are inserted into the abdominal cavity via small incisions (1/2 to 1 cm in length). The abdomen is first distended with a gas (carbon dioxide) to allow for good visualisation of the pelvis. The vascular pedicle between the uterus and ovaries/fallopian tubes are taken with sutures, electrosurgery or staples, the bladder is reflected away from the cervix, the cervix is sutured, and then the body of the uterus is cut away. The cervical stump can be cauterised to destroy any residual endometrium (lining of the womb). The uterus is removed via the vagina or via one of the ports using a morcellator; the latter option would be appropriate in this case. At the end of surgery, the instruments are removed from the abdomen, the gas is released, and the abdominal incisions are closed.
(3) Recovery after laparoscopic subtotal hysterectomy is relatively fast and in most cases hospitalisation would be expected to be 3 days or less.’
The mother seeks a declaration from the court that it is in Z’s best interests to undergo that operation (and no other) for the reasons that I have already given.
Miss Caroline Harry Thomas, counsel on behalf of the Official Solicitor, submits that although there is a risk of pregnancy, the Mirena intra-uterine device is the most appropriate form of contraception. She submits that major surgical procedures are not in Z’s best interests. Furthermore, the Mirena device will considerably lessen the heaviness of the periods because of the release of levonorgestrel. By rendering the endometrium inactive and insensitive to the proliferating effects of oestradiol, Mirena reduces the amount and duration of menstrual bleeding. In women with menorrhagia, studies have shown a reduction in menstrual blood loss of up to 86% at three months and 97% after one year. The Official Solicitor does not say that an appropriate therapy is the contraceptive pill.
The lawNo patient who is able to give or refuse consent can be medically operated upon lawfully without giving his consent. In the instant case there is absolutely no dispute whatsoever that Z lacks the mental capacity to decide whether or not to have a sterilisation operation and is unlikely ever to develop that capacity. Dr O’Shea, a consultant in the psychiatry of learning disability, examined Z on 22 January 1999 and in his report of 8 February 1999 put it this way:
‘Issue 1 - Mental Capacity
(2) [Z] is a young lady with a moderate to severe degree of learning disability. She has very limited language—both in comprehension and in expression. She has, in my opinion, following a clinical interview, very limited capacity to make informed decisions about anything but the most basic of her day-to-day needs, ie food and drink, and so therefore I feel that she lacks the capacity to decide whether to consent or refuse the proposed sterilisation operation. She has no real concept of what the operation involves, and it is unlikely that even explaining the issues in a very basic way, that she would be able to grasp the essentials which would be a pre-requisite of informed consent. As Down’s syndrome is a chromosonal condition which is not amenable to any form of treatment...
To continue reading
Request your trial
-
Sl (Adult Patient) (Sterilisation), Re sub nom Sl (Adult Patient) (Medical Treatment), Re; Sl v Sl; S (Sterilisation: Patient's Best Interests)
...[1995] 3 FCR 496, [1996] Fam 1, [1995] 3 All ER 290, [1995] 3 WLR 78, [1995] 1 FLR 1075, CA. Z (medical treatment: hysterectomy), Re [2000] 1 FCR 274; sub nom Re ZM and OS (sterilisation: patient’s best interests) [2000] 1 FLR AppealThe Official Solicitor appealed from the decision of Wall ......
-
Re Sl (Adult Patient) (Medical Treatment)
...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 s......