St George's Healthcare NHS Trust v S; R v Collins and Others, ex parte S

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date1998
Date1998

Medical treatment – Adult patient – Right to refuse treatment – Woman 36 weeks pregnant suffering from pre-eclampsia – Rejecting doctors’ advice that she be admitted to hospital for induced delivery – Patient admitted against her will to mental hospital and then transferred against her will to general hospital – On ex parte application judge granting declaration dispensing with her consent to treatment and patient delivered of baby by Caesarean section – Whether patient’s admission, detention and treatment in hospitals lawful – Mental Health Act 1983, s 2.

On seeking to register as a new patient at a local NHS practice, S, who was 36 weeks pregnant, was found to be suffering from pre-eclampsia and was advised by the doctor that she needed urgent attention and admission to hospital for an induced delivery and that without such treatment her health and life and the life of her baby were in danger. S fully understood the potential risks but rejected the advice as she wanted her baby to be born naturally. She was seen by C, a social worker approved under the Mental Health Act 1983, and two doctors. They repeated the advice but she again refused to accept it. On C’s application S was admitted to a mental hospital against her will for assessment under s 2 of the 1983 Act. A few hours later, again against her will, she was transferred to another hospital where she adamantly refused to consent to treatment, recorded her refusal in writing, and consulted solicitors. In view of her continuing refusal to consent to treatment an ex parte application was made to the court without the issue of a summons and without the judge being informed that S had instructed solicitors and that she and her solicitors were ignorant of the proceedings. The judge granted a declaration dispensing with C’s consent to treatment and later the same evening her baby was born by Caesarean section. A few days later C was returned to the mental hospital. Two days after that her detention under s 2 of the 1983 Act was terminated and she immediately discharged herself from the hospital. She appealed from the grant of the declaration dispensing with her consent to treatment and applied for judicial review of her admission and detention in the mental hospital, her transfer, detention and treatment in the second hospital, and her return to the mental hospital.

Held – (1) Even when his or her own life depended on receiving medical treatment, an adult of sound mind was entitled to refuse it. While pregnancy increased the personal responsibilities of the mother it did not diminish her entitlement to decide whether or not to undergo medical treatment. An unborn child was not a separate person from its mother and its need for medical assistance did not prevail over her rights; nor was her right reduced or diminished merely because her decision to exercise it might appear morally repugnant. The declaration in the present case involved the removal of the baby from within the body of her mother under physical compulsion and that amounted to trespass. Further, the judge had made a declaratory order on an ex parte application in proceedings which had not been instituted by the issue of a summons, without S’s knowledge or even any attempt to inform her or her solicitor of the application, without any evidence, and without any provision for S to apply to vary or discharge the order. In those circumstances the appeal would be allowed.

(2) The 1983 Act could not be deployed to achieve the detention of an individual against his or her will because his or her thinking process was unusual, even apparently bizarre and irrational, and contrary to the views of the overwhelming majority of the community at large. Unless the individual fell within the prescribed conditions the Act could not be used to justify detention for mental disorder. Even where a woman was lawfully admitted and detained under the Act for mental disorder she could not be forced into medical procedures unconnected with her mental condition unless her capacity to consent to such treatment was diminished. An application under s 2 of the Act had to be based upon the individual suffering or appearing to suffer from mental disorder which warranted the detention of the patient in a hospital for assessment. Treatment for the effects of pregnancy did not provide the necessary warrant and in the present case, as the social worker, C, believed that S should be detained in hospital because her condition was threatened by pre-eclampsia and not for the purpose of assessing her mental condition, the requirements of s 2 were not satisfied and the application for admission was unlawful. As the application appeared to have been duly made, the mental hospital was not liable for an unlawful admission of S but the subsequent detention of S, both before her transfer to the second hospital and after her transfer back were unlawful. Accordingly the application for judicial review would be granted and appropriate declaratory relief ordered.

Cases referred to in judgment

A-G’s Reference (No 3 of 1994) [1998] AC 245, [1997] 3 All ER 936, [1997] 3 WLR 421, HL; affg in part [1996] QB 581, [1996] 2 All ER 10, [1996] 2 WLR 412, CA.

Airedale NHS Trust v Bland[1994] 1 FCR 485, [1993] AC 789, [1993] 1 All ER 821, [1993] 2 WLR 316, CA & HL.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, [1969] 1 All ER 208, [1969] 2 WLR 163, HL; rvsg [1968] 2 QB 862, [1967] 2 All ER 986, [1967] 3 WLR 382, CA.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, [1947] 2 All ER 680, CA.

Blathwayt v Baron Cawley [1976] AC 397, [1975] 3 All ER 625, [1975] 3 WLR 684, HL.

Brink’s-MAT Ltd v Elcombe [1988] 3 All ER 188, [1988] 1 WLR 1350, CA.

Burton v Islington Health Authority, De Martell v Merton and Sutton Health Authority[1992] 2 FCR 845, [1993] QB 204, [1992] 3 All ER 833, [1992] 3 WLR 637, CA.

C (an adult: refusal of treatment), Re[1994] 2 FCR 151, [1994] 1 All ER 819, [1994] 1 WLR 290.

C v S [1988] QB 135, [1987] 1 All ER 1230, [1987] 2 WLR 1108, CA.

F (in utero), Re [1988] FCR 529, [1988] Fam 122, [1988] 2 All ER 193, [1988] 2 WLR 1288, CA.

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, HL; affg [1990] 2 AC 1, [1989] 2 WLR 1025, CA.

F v Riverside Mental Health NHS Trust[1994] 2 FCR 577, [1994] 1 FLR 614, CA.

Imperial Tobacco Ltd v A-G [1981] AC 718, [1980] 1 All ER 866, [1980] 2 WLR 466, HL.

International General Electric Co of New York Ltd v Comrs of Customs and Excise [1962] Ch 784, [1962] 2 All ER 398, [1962] 3 WLR 20, CA.

Issacs v Robertson [1985] AC 97, [1984] 3 All ER 140, PC.

JT (an adult: refusal of medical treatment), Re[1998] 2 FCR 662.

Jefferson v Griffin Spalding County Hospital Authority (1981) 274 SE 2d 457, Ga SC.

LB v Croydon District Health Authority[1995] 1 FCR 662; sub nom B v Croydon Health Authority [1995] Fam 133, [1995] 1 All ER 683, [1995] 2 WLR 294, CA.

MB (an adult: medical treatment), Re[1997] 2 FCR 541, CA.

McFall v Shimp (1978) 127 Pitts Leg J 14, 10 Pa D & C 3d 90, Allegheny Cty Ct.

MacFoy v United Africa Co Ltd [1962] AC 152, [1961] 3 All ER 1169, [1961] 3 WLR 1405, PC.

Madyyun, Re (1986) 573 A 2d 1259, DC Ct of Apps.

Marsh v Marsh [1945] AC 271, PC.

New Brunswick Rly Co v British and French Trust Corp Ltd [1939] AC 1, [1938] 4 All ER 747, HL.

Oscroft v Benabo [1967] 2 All ER 548, [1967] 1 WLR 1087, CA.

Paton v British Pregnancy Advisory Service Trustees [1979] QB 276, [1978] 2 All ER 987, [1978] 3 WLR 687.

R v Hallstrom, ex p W, R v Gardner, ex p L [1986] QB 1090, [1985] 3 All ER 775, [1985] 3 WLR 1090, CA.

Patten v Burke Publishing Co Ltd [1991] 2 All ER 821, [1991] 1 WLR 541.

R v Kirklees Metropolitan BC, ex p C[1993] 2 FCR 381, CA.

R v Managers of South Western Hospital, ex p M [1993] QB 683, [1994] 1 All ER 161, [1993] 3 WLR 376.

R v Wilson, ex p Williamson [1996] COD 42.

S (an adult: medical treatment), Re[1992] 2 FCR 893, [1993] Fam 123, [1992] 4 All ER 671, [1992] 3 WLR 806, CA.

S (an infant by her guardian ad litem the Official Solicitor to the Supreme Court) v S, W v Official Solicitor (acting as guardian ad litem for a male infant named PHW) [1972] AC 24, [1970] 3 All ER 107, [1970] 3 WLR 366, HL.

SC (mental patient: habeas corpus), Re[1996] 2 FCR 692, [1996] QB 599, [1996] 1 All ER 532, [1996] 2 WLR 146, CA.

T (an adult: medical treatment), Re[1992] 2 FCR 861, [1993] Fam 95, [1992] 4 All ER 649, [1992] 3 WLR 782, CA.

Wallersteiner v Moir, Moir v Wallersteiner [1974] 3 All ER 217, [1974] 1 WLR 991, CA.

Webster v Southwark London BC [1983] QB 698, [1983] 2 WLR 217.

Winnepeg Child and Family Services (Northwest Area) v G (1997) 3 BHRC 611, Can SC.

Appeal and application for judicial review

S appealed from the decision of Hogg J in chambers on 26 April 1997 whereby, on the ex parte application of St George’s Healthcare NHS Trust, she granted a declaration dispensing with her consent to medical treatment proposed by the trust. S also applied for judicial review of decisions of (i) Louize Collins, a social worker approved under the Mental Health Act 1983, (ii) Pathfinder Mental Health Services Trust and (iii) St George’s Healthcare NHS Trust relating to her detention under s 2 of the 1983 Act, treatment and transfer. The facts are set out in the judgment of the court.

Richard Gordon QC, Barbara Hewson and Robert O’Donoghue (instructed by Leigh Day & Co) for S.

Lord Lester of Herne Hill QC and Beverley Lang (instructed by Jane Ramsey, Merton) for Louize Collins.

Philip Havers QC and Monica Carrs-Frisk (instructed by Bevan Ashford, Bristol) for Pathfinder Mental Health Services NHS Trust and St George’s Healthcare NHS Trust.

Cur adv vult

7 May 1998. The following judgment of the court was delivered.

JUDGE LJ. Introduction

On 25 April 1996 S, a single woman born in June 1967, working as a veterinary nurse, sought to register as a new patient at a...

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