St. George's Healthcare N.H.S. Trust v S
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0730-5 |
| Docket Number | No FAFMF 97/0965/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1998 |
[1998] EWCA Civ J0730-5
Lady Justice Butler Sloss
Lord Justice Judge
Lord Justice Robert Walker
No FAFMF 97/0965/2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
FOR FURTHER JUDGMENT
Royal Courts of Justice
Strand
London WC2
MR R GORDON QC and MISS B HEWSON (Instructed by Leigh Day & Co of London) appeared on behalf of the Appellant
MR P HAVERS QC (Instructed by Bevan Ashford of Bristol) appeared on behalf of the Respondent
We have now received written submissions from Mr Havers and Mr Gordon. We understand that the applicant's solicitor has taken soundings from the Royal College of Midwives, The Royal College of Nurses, The United Kingdom Central Council for Nursing Midwifery and Health Visiting, The Law Society's Mental Health and Disability sub-committee, MIND, the Association for Improvements in the Maternity Services, The National Childbirth Trust, The Maternity Alliance, and The Association of Community Health Councils for England and Wales. We further understand that Mr Havers received comment from the British Medical Association, who in the available time has not any practical opportunity to carry out a formal consultation process, and the Department of Health. We have also received a letter from the Head of Legal Services for the First Respondent confirming that no submissions in relation to the proposed Guidelines would be made "as they do not appear to impact upon the role of an approved social worker".
In the light of these written submissions we have reconsidered the draft Guidelines set out at the end of the judgment which are now superseded.
The case highlighted some major problems which could arise for hospital authorities when a pregnant woman presented at hospital, the possible need for Caesarean surgery was diagnosed, and there was serious doubt about the patient's capacity to accept or decline treatment. To avoid any recurrence of the unsatisfactory events recorded in this judgment, and after consultations with the President of the Family Division and the Official Solicitor, and in the light of the written submissions from Mr Havers and Mr Gordon, we shall attempt to repeat and expand the advice given in Re: MB. This advice also applies to any cases involving capacity when surgical or invasive treatment may be needed by a patient, whether female or male. References to "she" and "her" should be read accordingly. It also extends, where relevant, to medical practitioners and health professionals generally as well as to hospital authorities.
The Guidelines depend on basic legal principles which we summarise:
(i) They have no application where the patient is competent to accept or refuse treatment. In principle a patient may remain competent notwithstanding detention under the Mental Health Act.
(ii) If the patient is competent and refuses consent to the treatment, an application to the High Court for a declaration would be pointless. In this situation the advice given to the patient should be recorded. For their own protection hospital authorities should seek unequivocal assurances from the patient (to be recorded in writing) that the refusal represents an informed decision: that is, that she...
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