Sl (Adult Patient) (Sterilisation), Re sub nom Sl (Adult Patient) (Medical Treatment), Re; Sl v Sl; S (Sterilisation: Patient's Best Interests)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Year | 2000 |
| Court | Court of Appeal (Civil Division) |
Medical treatment – Adult – Mental incapacity – Therapeutic treatment – Best interests of patient – Correct approach in determining best interests of patient.
The mother of a 28-year-old woman, S, who suffered from severe learning disability, issued an originating summons seeking a declaration from the High Court that it was in her daughter’s best interests to undergo an operation of sterilisation and/or hysterectomy. The mother was finding S’s day-to-day care 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 her present application. The first reason, which might be termed the social reason, was the fear that away from her close and careful supervision, S, who was an extremely attractive young woman, might either form a close emotional attachment, or be the victim of a sexual assault, with the possibility of pregnancy. The second reason, which was therapeutic, was that S suffered from heavy menstrual bleeding, which she did not understand and with which she had great difficulty coping. S was joined as a party to the proceedings and represented by the Official Solicitor, who opposed the mother’s application. The judge found that there was an identifiable risk of pregnancy, and that although sterilisation was not in S’s interests, it was in her interests for her menstrual periods to cease. The judge went on to consider the proposed alternative therapeutic treatments: a laparoscopic subtotal hysterectomy or the insertion of a Mirena coil. The immediate preferred option of the medical experts was to insert the Mirena coil even though it might be necessary to have the more invasive treatment at a later stage. In deciding which treatment was in S’s best interests, the judge noted that the experts had not asserted that to move immediately to surgery was outside the Bolam test: in other words that in performing a laparoscopic subtotal hysterectomy operation a doctor would not be operating in accordance with a practice accepted at the time by a responsible body of medical opinion skilled in the particular form of treatment in question. He held that the more invasive treatment was the preferred option but that the alternative Mirena coil was lawful, although it did not fully meet S’s needs, and he made the declaration sought by the mother. He left it to the mother to discuss with the doctors which of the two methods should be adopted. On appeal, a question of law arose as to the correct approach of the court to the best interests of a patient without the mental capacity to consent to an operation, and the relevance of the Bolam test to that judicial inquiry.
Held – Where the medical profession sought a declaration from the High Court as to the lawfulness of the proposed treatment, it was for the judge, not the doctor, to
decide whether the treatment was in the best interests of the patient. Once satisfied that the range of options was within the range of acceptable opinion among competent and responsible practitioners, the Bolam test became irrelevant to the principle of best interests as applied by the court, and in deciding what was best for the disabled patient the judge had to have regard to the patient’s welfare as the paramount consideration. That embraced issues far wider than the medical. Furthermore, the judicial decision should provide the best answer, not a range of alternative answers. In the instant case, the judge was in error in his application of the Bolam test to his decision-making process and also in offering the mother the alternatives of the hysterectomy or the insertion of the Mirena coil. He had to declare the lawfulness of the surgical intervention in the context of such an operation being in his judgment in the best interests of the patient and to offer the alternatives was not to decide which treatment was the better for S. Since there was no doubt that the surgery was premature, the appeal would be allowed and the medical practitioners would be invited to insert the Mirena coil as had been recommended.
Decision of Wall J ([2000] 1 FCR 361) reversed.
Per Thorpe LJ. The three requirements set out in Re GF (a patient) [1991] FCR 786, identifying where it would not be necessary to seek the approval of the High Court to carry out a sterilisation operation, ie where two medical practitioners are satisfied that the operation is, (1) necessary for therapeutic purposes, (2) in the best interests of the patient, and (3) that there is no practicable less intrusive means of treating the condition, should be strictly interpreted and applied. In view of the importance of the subject, if a particular case lies anywhere near the boundary line it should be referred to the court by way of application for a declaration of lawfulness.
Cases referred to in judgmentsA (medical treatment: male sterilisation) [2000] 1 FCR 193, [2000] 1 FLR 549, CA.
Airedale NHS Trust v Bland [1994] 1 FCR 485, [1993] AC 789, [1993] 1 All ER 821, [1993] 2 WLR 316, [1993] 1 FLR 1026, HL; affg [1994] 1 FCR 485, [1993] AC 789, [1993] 1 All ER 821, [1993] 2 WLR 316, [1993] 1 FLR 1026, CA.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.
D (a minor) (wardship: sterilisation), Re [1976] Fam 185, [1976] 1 All ER 326, [1976] 2 WLR 279.
F (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.
G (adult patient: publicity), Re [1996] 1 FCR 413, [1995] 2 FLR 528.
GF (a patient), Re [1991] FCR 786; sub nom Re GF (medical treatment) [1992] 1 FLR 293.
N-K, Re [1990] CA Transcript No 1233.
S (hospital patient: court’s jurisdiction), Re [1995] 1 FCR 637, [1995] Fam 26, [1995] 1 All ER 449, [1995] 2 WLR 38, [1995] 1 FLR 302; affd [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 523.
AppealThe Official Solicitor appealed from the decision of Wall J ([2000] 1 FCR 381) whereby on the mother’s originating summons for a declaration that it was in her daughter’s best interests to undergo an operation of sterilisation and/or hysterectomy, he granted the declaration sought. The facts are set out in the judgment of Dame Elizabeth Butler-Sloss P.
James Munby QC and Susan Harrison (instructed by the Official Solicitor) for S.
David Harris QC and Lesley Newton (instructed by Widdows Mason) for the respondent.
Cur adv vult
18 May 2000. The following judgments were delivered.
DAME ELIZABETH BUTLER-SLOSS P.Miss SL, (S), is a very attractive young woman of 28, born on 24 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:
‘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 has been represented by the Official Solicitor who opposed the application. The originating summons was heard by Wall J, who gave judgment on 24 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 ([2000] 1 FCR 361...
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