F v West Berkshire HA [1991] UKHL 1 (17 July 1990)

In re F (Respondent)

JUDGMENT

Die Jovis 4° Maii 1989

Upon Report from the Appellate Committee to whom was
referred the Cause In re F, That the Committee had heard
Counsel as well on Monday the 27th and Tuesday the 28th days
of February as on Wednesday the 18th, Thursday the 2nd, Monday
the 6th, Tuesday the 7th, Wednesday the 8th and Thursday the
9th days of March last, upon the Petition and Appeal of the
Official Solicitor to the Supreme Court, of Penderel House,
287 High Holborn, London WC1V 7HP praying that the matter of
the Order set forth in the Schedule thereto, namely an Order
of Her Majesty’s Court of Appeal of the 3rd day of February
1989, might be reviewed before Her Majesty the Queen in Her
Court of Parliament and that the said Order might be reversed,
varied or altered or that the Petitioners might have such
other relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; as upon the cases of
Fiona Kinloch (by her mother and next friend Lesley Perkins)
and the West Berkshire Health Authority, lodged in answer to
the said Appeal; and Counsel having been heard as amicus
curiae and also on behalf of the Mental Health Act Commission,
the Intervenors in the said Appeal; and due consideration had
this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 3rd day of February 1989
complained of in the said Appeal be, and the same is hereby,
Set Aside, save as to legal aid taxation, and that the said
Petition and Appeal be, and the same is hereby, dismissed this
House: And it is further Ordered, That the following Order
and Declaration be substituted for that of Mr. Justice Scott
Baker of the 2nd day of December 1988, as amended on the 16th
day of December 1988:

“(1) it is declared that the operation of
sterilisation proposed to be performed on the
plaintiff being in the existing circumstances in
her best interests can lawfully be performed on
her despite her inability to consent to it;

(2) It is ordered 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”;

And it is also further Ordered, That the costs of the said
Respondent Fiona Kinloch be taxed in accordance with Schedule
2 to the Legal Aid Act 1974, as amended, such costs to include
provision for three Counsel.

Cler: Parliamentor:

Oral Judgment: 4.5.89
Reasons: 24 5.89

HOUSE OF LORDS

IN RE F.
(RESPONDENT)

Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Goff of Chieveley
Lord Jauncey of Tullichettle

LORD BRIDGE OF HARWICH

My Lords,

I have had the advantage of reading the speeches of my
noble and learned friends Lord Brandon of Oakbrook and Lord Goff
of Chieveley. I concurred in the dismissal of the appeal, subject
to a variation of the terms of the order made by Scott Baker J.,
for the reasons given by them.

The appeal raised a number of difficult questions regarding
both the jurisdiction and the procedure of the court in relation to
the lawfulness of the sterilisation of an adult woman disabled by
mental incapacity from giving her consent to the operation. These
issues are fully examined by Lord Brandon and Lord Goff and I
further agree, for the reasons they give in the following
conclusions:-

1. 1. that no court now has jurisdiction either by statute or
    derived from the Crown as parens patriae to give or
    withhold consent to such an operation in the case of an
    adult as it would in wardship proceedings in the case of a
    minor;
  2. that the court has jurisdiction to declare the lawfulness of
    such an operation proposed to be performed on the ground
    that it is in the circumstances in the best interests of the
    woman and that, although such a declaration is not
    necessary to establish the lawfulness of the operation, in
    practice the court’s jurisdiction should be invoked whenever
    such an operation is proposed to be performed.
  3. that for the future the procedure to be used when applying
    for a declaration of the kind in question should be regulated
    as proposed in the speech of my noble and learned friend
    Lord Brandon of Oakbrook.

The issues canvassed in argument before your Lordships
revealed the paucity of clearly defined principles in the common
law which may be applied to determine the lawfulness of medical
or surgical treatment given to a patient who for any reason,
temporary or permanent, lacks the capacity to give or to
communicate consent to that treatment. It seems to me to be
axiomatic that treatment which is necessary to preserve the life,
health or well being of the patient may lawfully be given without
consent. But if a rigid criterion of necessity were to be applied
to determine what is and what is not lawful in the treatment of
the unconscious and the incompetent, many of those unfortunate
enough to be deprived of the capacity to make or communicate
rational decisions by accident, illness or unsoundness of mind might
be deprived of treatment which it would be entirely beneficial for
them to receive.

Moreoever, it seems to me of first importance that the
common law should be readily intelligible to and applicable by all
those who undertake the care of persons lacking the capacity to
consent to treatment. It would be intolerable for members of the
medical, nursing and other professions devoted to the care of the
sick that, in caring for those lacking the capacity to consent to
treatment they should be put in the dilemma that, if they
administer the treatment which they believe to be in the patient’s
best interests, acting with due skill and care, they run the risk of
being held guilty of trespass to the person, but if they withhold
that treatment, they may be in breach of a duty of care owed to
the patient. If those who undertake responsibility for the care of
incompetent or unconscious patients administer curative or
prophylactic treatment which they believe to be appropriate to the
patient’s existing condition of disease, injury or bodily malfunction
or susceptibility to such a condition in the future, the lawfulness
of that treatment should be judged by one standard, not two. It
follows that if the professionals in question have acted with due
skill and care, judged by the well-known test laid down in Bolam
v. Friern Hospital Management Committee [1957] 1 W.L.R. 582,
they should be immune from liability in trespass, just as they are
immune from liability in negligence. The special considerations
which apply in the case of the sterilisation of a woman who is
physically perfectly healthy or of an operation upon an organ
transplant donor arise only because such treatment cannot be
considered either curative or prophylactic.

LORD BRANDON OF OAKBROOK

My Lords,

This appeal concerns the proposed sterilisation of an adult
woman, F., who is disabled by mental incapacity from consenting
to the operation. By an originating summons issued in the High
Court, Family Division, on 20 June 1988, in which F. by her
mother and next friend was named as plaintiff and the West
Berkshire Health Authority (“the health authority”) as defendant,
F. applied for (1) a declaration, under R.S.C., Ord. 15, r. 16, that

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to effect her sterlisation would not amount to an unlawful act by
reason only of the absence of her consent or (2) the consent of
the court under either its parens patriae or its inherent jurisdiction
to her sterilisation. The application was heard by Scott Baker J.
in chambers with the assistance of counsel instructed by the
Official Solicitor as amicus curiae. On 2 December 1988 the
judge gave judgment in open court and by order of that date made
the declaration sought under (1) above. Pursuant to a direction
given by the Lord Chancellor under section 90(3)(b) of the Supreme
Court Act 1981 the Official Solicitor, being of opinion that it was
in F.’s interests that the case should be considered by the Court
of Appeal, obtained the leave of that court to appeal against the
decision of Scott Baker J. By order dated 3 February 1989 the
Court of Appeal (Lord Donaldson of Lymington M.R., Neill and
Butler-Sloss L.JJ.) dismissed the Official Solicitor’s appeal and
gave him leave to appeal to your Lordships’ House. Subsequently
the House allowed an application by the Mental Health Act
Commission for England and Wales for leave to intervene in the
appeal and your Lordships had the benefit of additional argument
by counsel for them at the hearing.

The material facts relating to F., which are not in dispute,
are these. She was born on 13 January 1953, so that she is now
36. She suffers from serious mental disability, probably as a
consequence of an acute infection of the respiratory tract which
she had when she was about nine months old. She has been a
voluntary in-patient at Borocourt Hospital (a mental hospital under
the control of the health authority) since 1967 when she was 14.
Her mental disability takes the form of an arrested or incomplete
development of the mind. She has the verbal capacity of a child
of two and the general mental capacity of a child of four to five.
She is unable to express her views in words but can indicate what
she likes or dislikes, for example, people, food, clothes and
matters of routine. She experiences emotions such as enjoyment,
sadness and fear, but is prone to express them differently from
others. She is liable to become aggressive. Her mother is her
only relative and visits her regularly. There is a strong bond of
affection between them. As a result of the treatment which F.
has received during her time in hospital she has made significant
progress. She has become less aggressive and is allowed
considerable freedom of movement about the hospital grounds
which are large. There is, however, no prospect of any
development in her mental capacity.

The question of F. being sterilised has arisen because of a
relationship which she has formed with a male patient at the same
hospital, P. This relationship is of a sexual nature and probably
involves sexual intercourse, or something close to it, about twice a
month. The relationship is entirely voluntary on F.’s part and it is
likely that she obtains pleasure from it. There is no reason to
believe that F. has other than the ordinary fertility of a woman of
her age. Because of her mental disability, however, she could not
cope at all with pregnancy, labour or delivery, the meaning of
which she would not understand. Nor could she care for a baby if
she ever had one. In these circumstances it would, from a
psychiatric point of view, be disastrous for her to conceive a
child. There is a serious objection to each of the ordinary
methods of contraception. So far as varieties of the pill are
concerned she would not be able to use them effectively and there

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is a risk of their causing damage to her physical health. So far
as an inter-uterine device is concerned, there would be danger of
infection arising, the symptoms of which she would not be able to
describe so that remedial measures could not be taken in time.

In the light of the facts set out above Scott Baker J.
concluded that it would be in the best interests of F. to have an
operation for sterilisation by ligation of her Fallopian tubes. The
Court of Appeal unanimously affirmed that conclusion, and no
challenge to its correctness was made on behalf of any party at
the hearing of the appeal before your Lordships.

It might have been supposed that, with such complete
agreement that it was in F.’s best interests that she should be
sterilised, no difficulty about giving effect to that agreement
would have arisen. Difficulty, however, has arisen because of
doubts about three questions of law and legal procedure. The first
question is whether it is necessary or desirable for the court to
become involved in the matter at all. The second question is, if
so, what jurisdiction does the court have to deal with the matter,
and according to what principles should that jurisdiction be
exercised. The third question is, assuming that the court has
jurisdiction and is bound to exercise it in a particular manner,
what procedure should be used for the invocation and subsequent
exercise of that jurisdiction.

If F. were a minor of say 17, instead of an adult of 36, and
the same problem arose in relation to her, there would be no
difficulty in answering these three questions. This is because your
Lordships’ House dealt authoritatively with a case involving the
sterilisation of a girl just under 18, who suffered from mental
disability closely comparable to F.’s, in In Re B. (A Minor)
(Wardship: Sterilisation) [1988] A.C. 199. The answer to the first
question would have been that, because of the seriousness of
deciding whether the girl should be sterilised or not, the court, in
the form of the High Court, Family Division, should be involved in
the matter. The answer to the second question would be that the
court could exercise its wardship jurisdiction, and, in doing so,
would be bound to treat the welfare, or to use an expression with
substantially the same meaning, the best interests of the minor, as
the paramount consideration. The answer to the third question
would be that the wardship jurisdiction of a court would be
invoked by the issue by an interested party of an originating
summons under R.S.C., Ord. 90, r. 3, and the procedure then
followed would be the ordinary procedure designed to bring all
relevant expert and other evidence before the court so as to
enable it to decide whether sterilisation was or was not in the
best interests of the girl.

For reasons which will become apparent later, no court or
judge has now any jurisdiction with respect to the person of an
adult under mental disability comparable with the wardship
jurisdiction of the High Court with respect to the person of a
minor in a similar condition. Because of this, no ready answers
are available to the three questions referred to above in the case
of such an adult, and a separate examination of each of them has
to be made.

(1) The necessity or desirability of the court being involved

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Part IV of the Mental Health Act 1983 contains provisions,
which it is not necessary to detail, imposing restrictions or
conditions on the giving to mentally disorded persons of certain
kinds of treatment for their mental disorder. The Act, however,
does not contain any provisions relating to the giving of treatment
to patients for any conditions other than their mental disorder.
The result is that the lawfulness of giving any treatment of the
latter kind depends not on statute but the common law.

At common law a doctor cannot lawfully operate on adult
patients of sound mind, or give them any other treatment involving
the application of physical force however small (“other treatment”),
without their consent. If a doctor were to operate on such
patients, or give them other treatment, without their consent, he
would commit the actionable tort of trespass to the person. There
are, however, cases where adult patients cannot give or refuse
their consent to an operation or other treatment. One case is
where, as a result of an accident or otherwise, an adult patient is
unconscious and an operation or other treatment cannot be safely
delayed until he or she recovers consciousness. Another case is
where a patient, though adult, cannot by reason of mental
disability understand the nature or purpose of an operation or
other treatment. The common law would be seriously defective if
it failed to provide a solution to the problem created by such
inability to consent. In my opinion, however, the common law
does not so fail. In my opinion, the solution to the problem which
the common law provides is that a doctor can lawfully operate on,
or give other treatment to, adult patients who are incapable, for
one reason or another, of consenting to his doing so, provided that
the operation or other treatment concerned is in the best interests
of such patients. The operation or other treatment will be in
their best interests if, but only if, it is carried out in order either
to save their lives, or to ensure improvement or prevent
deterioration in their physical or mental health.

Different views have been put forward with regard to the
principle which makes it lawful for a doctor to operate on or give
other treatment to adult patients without their consent in the two
cases to which I have referred above. The Court of Appeal in the
present case regarded the matter as depending on the public
interest. I would not disagree with that as a broad proposition,
but I think that it is helpful to consider the principle in
accordance with which the public interest leads to this result. In
my opinion, the principle is that, when persons lack the capacity,
for whatever reason, to take decisions about the performance of
operations on them, or the giving of other medical treatment to
them, it is necessary that some other person or persons, with the
appropriate qualifications, should take such decisions for them.
Otherwise they would be deprived of medical care which they need
and to which they are entitled.

In many cases, however, it will not only be lawful for
doctors, on the ground of necessity, to operate on or give other
medical treatment to adult patients disabled from giving their
consent; it will also be their common law duty to do so.

In the case of adult patients made unconscious by an
accident or otherwise, they will normally be received into the
casualty department of a hospital, which thereby undertakes the

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care of them. It will then be the duty of the doctors at that
hospital to use their best endeavours to do, by way of either an
operation or other treatment, that which is in the best interests of
such patients.

In the case of adult patients suffering from mental
disability, they will normally, in accordance with the scheme of
the Mental Health Act 1983, be either in the care of guardians,
who will refer them to doctors for medical treatment, or of
doctors at mental hospitals in which the patients either reside
voluntarily or are detained compulsorily. It will then again be the
duty of the doctors concerned to use their best endeavours to do,
by way of either an operation or other treatment, that which is in
the best interests of such patients.

The application of the principle which I have described
means that the lawfulness of a doctor operating on, or giving
other treatment to, an adult patient disabled from giving consent,
will depend not on any approval or sanction of a court, but on the
question whether the operation or other treatment is in the best
interests of the patient concerned. That is, from a practical point
of view, just as well, for, if every operation to be performed, or
other treatment to be given, required the approval or sanction of
the court, the whole process of medical care for such patients
would grind to a halt.

That is not the end of the matter, however, for there
remains a further question to be considered. That question is
whether, in the case of an operation for the sterilisation of an
adult woman of child-bearing age, who is mentally disabled from
giving or refusing her consent to it, although involvement of the
court is not strictly necessary as a matter of law, it is
nevertheless highly desirable as a matter of good practice. In
considering that question, it is necessary to have regard to the
special features of such an operation. These features are: first,
the operation will in most cases be irreversible; secondly, by
reason of the general irreversibility of the operation, the almost
certain result of it will be to deprive the woman concerned of
what is widely, and as I think rightly, regarded as one of the
fundamental rights of a woman, namely, the right to bear children;
thirdly, the deprivation of that right gives rise to moral and
emotional considerations to which many people attach great
importance; fourthly, if the question whether the operation is in
the best interests of the woman is left to be decided without the
involvement of the court, there may be a greater risk of it being
decided wrongly, or at least of it being thought to have been
decided wrongly; fifthly, if there is no involvement of the court,
there is a risk of the operation being carried out for improper
reasons or with improper motives; and, sixthly, involvement of the
court in the decision to operate, if that is the decision reached,
should serve to protect the doctor or doctors who perform the
operation, and any others who may be concerned in it, from
subsequent adverse criticisms or claims.

Having regard to all these matters, I am clearly of the
opinion that, although in the case of an operation of the kind
under discussion involvement of the court is not strictly necessary
as a matter of law, it is nevertheless highly desirable as a matter
of good practice.

– 6 –

There may be cases of other special operations to which
similar considerations would apply. I think it best, however, to
leave such other cases to be examined as and when they arise.

(2) The judisdiction of the court and the principles on which it
should be exercised

In the course of the argument in this appeal your Lordships
were invited to consider four kinds of jurisdiction by the exercise
of which the court might become involved in the decision whether
F. should be sterilised or not. These were: first, the parens
patriae jurisdiction; secondly, jurisdiction under Part VII of the
Mental Health Act 1983; thirdly, a jurisdiction which the Court of
Appeal considered could be exercised under appropriate
amendments to R.S.C., Ord. 80; and, fourthly, the jurisdiction to
make declarations. I shall examine each of these in turn.

I consider first the parens patriae jurisdiction. This is an
ancient prerogative jurisdiction of the Crown going back as far
perhaps as the thirteenth century. Under it the Crown as parens
patriae had both the power and the duty to protect the persons
and property of those unable to do so for themselves, a category
which included both minors (formerly described as infants) and
persons of unsound mind (formerly described as lunatics or idiots).
While the history of that jurisdiction and the manner of its
exercise from its inception until the present day is of the greatest
interest, I do not consider that it would serve any useful purpose
to recount it here. I say that because it was accepted by the
Court of Appeal and not challenged by any of the parties to the
appeal before your Lordships, that the present situation with
regard to the parens patriae jurisdiction was as follows. First, so
much of the parens patriae jurisdiction as related to minors
survives now in the form of the wardship jurisdiction of the High
Court, Family Division. Secondly, so much of the parens patriae
jurisdiction as related to persons of unsound mind no longer exists.
It ceased to exist as a result of two events both of which took
place on 1 November 1960. The first event was the coming into
force of the Mental Health Act 1959, section 1 of which provided:

“1. Subject to the transitional provisions contained in this
Act, the Lunacy and Mental Treatment Acts, 1890 to 1930,
and the Mental Deficiency Acts, 1913 to 1938, shall cease
to have effect, and the following provisions of this Act shall
have effect in lieu of those enactments with respect to the
reception, care and treatment of mentally disordered
patients, the management of their property, and other
matters related thereto.”

The second event was the revocation by Warrant under the Sign
Manual of the last Warrant dated 10 April 1956, by which the
jurisdiction of the Crown over the persons and property of those
found to be of unsound mind by inquisition had been assigned to
the Lord Chancellor and the judges of the High Court, Chancery
Division.

The effect of section 1 of the Act of 1959, together with
the Warrant of revocation referred to above, was to sweep away
the previous statutory and prerogative jurisdiction in lunacy,
leaving the law relating to persons of unsound mind to be governed

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solely, so far as statutory enactments are concerned, by the
provisions of that Act. So far as matters not governed by those
provisions are concerned, the common law relating to persons of
unsound mind continued to apply. It follows that the parens
patriae jurisdiction with respect to persons of unsound mind is not
now available to be invoked in order to involve the court or a
judge in the decision about the sterilisation of F.

I consider, secondly, jurisdiction under Part VII of the
Mental Health Act 1983. That part of the Act has the heading
“Management of Property and Affairs of Patients” and comprises
sections 93 to 113. The question which has to be considered is
whether the expression “the affairs of patients,” as used in the
heading and various sections of Part VII, includes medical
treatment such as an operation for sterilisation. In order to
answer that question, it is necessary to examine the following
sections in Part VII which are mainly relevant to it:

“93. (1) The Lord Chancellor shall from time to time
nominate one or more judges of the Supreme Court … to
act for the purposes of this Part of this Act.

“(2) There shall continue to be an office of the Supreme
Court, called the Court of Protection, for the protection
and management, as provided by this Part of this Act, of
the property and affairs of persons under disability . . .

“95. (1) The judge may, with respect to the property and
affairs of a patient, do or secure the doing of all such
things as appear necessary or expedient –

(a) for the maintenance or other benefit of the
patient,

(b) for the maintenance or other benefit of members
of the patient’s family,

(c) for making provision for other persons or purposes
for whom or which the patient might be expected to
provide if he were not mentally disordered, or

(d) otherwise for administering the patient’s affairs.

“(2) In the exercise of the powers conferred by this
section regard shall be had first of all to the requirements
of the patient, and the rules of law which restricted the
enforcement by a creditor of rights against property under
the control of the judge in lunacy shall apply to property
under the control of the judge; but, subject to the foregoing
provisions of this subsection, the judge shall, in
administering a patient’s affairs, have regard to the
interests of creditors and also to the desirability of making
provision for obligations of the patient notwithstanding that
they may not be legally enforceable.

“96. (1) Without prejudice to the generality of section 95
above, the judge shall have power to make such orders and
give such directions and authorities as he thinks fit for the
purposes of that section and in particular may for those
purposes make orders or give directions or authorities for –

– 8 –

1. 1. the control . . . and management of any property of
    the patient;
  2. the sale, exchange, charging or other disposition of or
    dealing with any property of the patient;

1. 1. the settlement of any property of the patient, or the
    gift of any property of the patient to any such
    persons or for any such purposes as are mentioned in
    paragraphs (b) and (c) of section 95(1) above;
  2. the execution for the patient of a will making any
    provision . . . which could be made by a will
    executed by the patient if he were not mentally
    disordered;
  3. the carrying on by a suitable person of any
    profession, trade or business of the patient;
  4. the dissolution of a partnership of which the patient
    is a member;

(h) the carrying out of any contract entered into by the
patient;

(i) the conduct of legal proceedings in the name of the
patient or on his behalf;

(j) the reimbursement out of the property of the patient
. . . of money applied by any person either in
payment of the patient’s debts (whether legally
enforceable or not) or for the maintenance or other
benefit of the patient or members of his family . . .;

(k) the exercise of any power (including a power to
consent) vested in the patient, whether beneficially,
or as guardian or trustee, or otherwise.”

The expression “the affairs of patients,” taken by itself and
without regard to the context in which it appears, is, in my view,
capable of extending to medical treatment of patients other than
treatment for their mental disorder. There is further an obvious
attraction in construing that expression, as used in Part VII of the
Act of 1983, as having that extended meaning (“the wider
meaning”), since there would then be a judicial authority, namely,
a judge nominated under section 93(1), who would have statutory
power to authorise, or refuse to authorise, the sterilisation of an
adult woman of unsound mind such as F. There are two passages
in the sections of the Act set out above which, if they do not
expressly support the wider meaning, are at least consistent wih it.
The first is the passage in section 95(1)(a) “for the maintenance or
other benefit of the patient” (my emphasis). The second is the
passage in section 96(1)(k) “the exercise of any power (including a
power to consent) vested in the patient, whether beneficially, or as
guardian or trustee, or otherwise” (again my emphasis). It seems

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to me, however, that, when one examines the general tenor of
Part VII of the Act, and more particularly the context in which
the two passages referred to above are to be found, the expression
“the affairs of patients” cannot properly be construed as having
the wider meaning. It must rather be construed as including only
business matters, legal transactions and other dealings of a similar
kind.

I would, therefore, hold that Part VII of the Act of 1983
does not confer on a judge nominated under section 93(1) any
jurisdiction to decide questions relating to the medical treatment
of a patient, such as the question of F.’s sterilisation in the
present case.

I consider, thirdly, the jurisdiction relied on by the Court of
Appeal. Lord Donaldson of Lymington M.R., reached the
conclusion that operations for the sterilisation of adult women,
disabled by mental disorder from giving their consent, as of
minors, were in a special category, and should not be performed
without the approval of the court (transcript pp. 19-21). He then
turned to the question of the procedure to be used for seeking
that approval and said, at pp. 21-23:

“This at once raised the question of how the court should be
consulted and what form its concurrence in the treatment of
the patient should take. Thus far, apart from the instant
case, there have been three occasions upon which proposed
abortion or sterilisation operations upon adults who were
incompetent to consent have been brought before the court
(In re T. The Times, 26 May 1987, per Latey J.; In re X.
The Times, 4 June 1987, per Reeve J.; and T. v. T. [1988]
Fam. 62, per Wood J.). In each case those who proposed
that the operation be carried out sought and obtained a
declaration that to do so would be lawful.

“For my part, I do not think that this is an appropriate
procedure. A declaration changes nothing. All that the
court is being asked to do is to declare that, had a course
of action been taken without resort to the court, it would
have been lawful anyway. In the context of the most
sensitive and potentially controversial forms of treatment
the public interest requires that the courts should give
express approval before the treatment is carried out and
thereby provide an independent and broad based ‘third
opinion.’ In the case of wards of court, the performance of
any such operation without first obtaining the approval of
the court would in any event constitute a very grave
contempt of court. In the case of other minors, the law
will impose a very heavy burden of justification upon those
who carry out the treatment without first ensuring that the
minors are made wards of court and the court’s consent
obtained. In the case of adults who are themselves
incompetent to consent, the law will impose an equally
heavy burden of justification if those who carry out the
treatment do not first seek a determination of the
lawfulness of the proposed treatment by enabling the court
to approve or to disapprove.

– 10 –

“As this problem has only recently arisen, there is no
specific procedure laid down for obtaining the court’s
approval. R.S.C., Ord. 80 is that which is concerned with
persons under a disability and there should be little
difficulty in framing a new rule under that Order prescribing
such a procedure. We trust that this will receive urgent
attention from the Lord Chancellor and the Supreme Court
Rule Committee.

“In the course of argument we were told that the Official
Solicitor knows of a small number of other cases in which it
is considered necessary that such an operation be performed
upon an adult patient, but in which the outcome of this
appeal has been awaited. Clearly it would not be right that
those patients should have to await the formulation and
enactment of a new procedural rule. Fortunately the court
has inherent jurisdiction to regulate its own proceedings
where the rules make no provision and, pending the
appearance of a new rule or a Practice Direction by the
President of the Family Division of the High Court, we will
direct as follows:

1. 1. Applications for the court’s approval of medical or
    surgical treatment where such approval is required
    should be by way of originating summons issuing out
    of the Family Division of the High Court.
  2. The applicant should normally be those responsible for
    the care of the patient or those intending to carry
    out the treatment, if it is approved.
  3. The patient must always be a party and should
    normally be a respondent. In cases in which the
    patient is a respondent the patient’s guardian ad litem
    should normally be the Official Solicitor. In any
    cases in which the Official Solicitor is not either the
    next friend or the guardian ad litem of the patient or
    an applicant he shall be a respondent.
  4. With a view to protecting the patient’s privacy, but
    subject always to the judge’s discretion, the hearing
    will be in chambers, but the decision and the reasons
    for that decision will be given in open court.

“As the procedure adopted in this case accorded with what
at the time was thought to be appropriate and as the judge
investigated the matter fully and reached a decision, the
wisdom of which no one seeks to challenge, I would dismiss
the appeal.”

Neill L.J. said, at pp. 42-43:

“There are, however, some operations where the intervention
of a court is most desirable if not essential. In this
category I would place operations for sterilisation and organ
transplant operations where the incapacitated patient is to
be the donor. The performance of these operations should
be subject to outside scrutiny. The lawfulness of the
operation will depend of course on the question whether it

– 11 –

is necessary or not, but in my view it should become
standard practice for the approval of the court to be
obtained before an operation of this exceptional kind is
carried out. Thus it is of the greatest importance to
guard against any tendency for operations for sterilsation to
be performed as a matter of convenience or merely to ease
the burden of those who are responsible for looking after
the patient. Each case needs to be looked at with especial
care to ensure that the operation is indeed in the best
interests of the patient.

“I consider that a special form of procedure should be
provided so that the matter can be brought before the court
in the simplest way possible. A claim for a declaration
under R.S.C., Ord. 15, r. 16 is not a satisfactory form of
procedure because, if the claim were unopposed, as it often
would be, the proceedings would be open to the technical
objections that declarations are not in the ordinary way
made by consent nor where the defendant or respondent has
asserted no contrary claim. Nevertheless, the purpose of
the application to the court will be to satisfy the court that
the operation which is to be performed will be necessary
and lawful and the court’s approval will be sought on this
basis. If the court is so satisfied its decision will provide a
safeguard for those who carry out the operation and an
assurance to the public that the facts have been fully
investigated in a court of law. If the court is not so
satisfied, its approval will not be given and the operation
will not go ahead. Of course, if there was any possibility
that the operation was going to be proceeded with after
approval had been withheld – which would be extremely
unlikely – the court could grant an injunction. It may be
that the most convenient method of prescribing the
appropriate form of procedure will be by way of a new rule
under R.S.C,, Ord. 80 which is concerned with proceedings
relating to those under a disability.

“I have had the advantage of reading in draft the judgment
of Lord Donaldson of Lymington M.R. I agree with his
proposals as to how the proceedings should be constituted
and heard.”

Butler-Sloss L.J. said, at pp. 55-56:

“In my judgment, a decision as to sterilisation of a person
under a disability ought not to be left entirely to the
decision of the family and the medical profession alone.
Public policy requires that there should be imposed the
supervision of the courts in so important and delicate a
decision.

“In the previous cases . . . and in the present appeal the
mechanism has been by declaration under R.S.C., Ord. 15, r.
16. I agree that this is not an appropriate procedure. A
declaration cannot alter the existing position and the
granting of it at first instance may have limited efficacy in
any subsequent litigation. The court by a declaration alone
cannot give approval. The reverse application, an injunction,
is also limited in its usefulness and, other than the Official

– 12 –

Solicitor if notified, there may be no one with an interest
available to apply for it.

“There is at present no mechanism providing for the
approval of the court in the present case. It does, however,
exist in the sphere of property by R.S.C., Ord. 80 for
persons under a disbility and by analogy I see no reason in
principle why a rule should not be framed to prescribe such
a procedure. I respectfully agree with Lord Donaldson of
Lymington M.R. as to the procedure that he has set out in
his judgment and the participation of the Official Solicitor.

“Such a procedure is needed in those operations coming
within the special category which includes sterilisation, in
the public interest, in order to demonstrate that the
operation will or will not be lawful and to give or withhold
the approval of the court.”

My Lords, as I understand the judgments of all three
members of the Court of Appeal, they took the same view with
regard to the involvement of the court in a case such as F. as I
expressed earlier: namely, that, although such involvement is not
strictly necessary as a matter of law, it is highly desirable as a
matter of good practice. They went on, however, to say that the
court’s involvement should take the form of giving or refusing its
approval to the sterilisation operation proposed. They further
considered that the procedure to be used for the making and
determination of an application for approval could conveniently be
prescribed by a new rule under R.S.C., Ord. 80.

I recognise that such a form of proceeding, if it were open
to be adopted, would provide an admirable solution to the
procedural problem which arises. With respect to the Court of
Appeal, however, I cannot see how or on what basis the High
Court, or any court or judge, can have jurisdiction to approve or
disapprove a proposed operation. If the old parens patriae
jurisdiction were still available with respect to persons of unsound
mind, as it is with respect to minors who are wards, and if its
exercise could be conferred on the judges of the High Court,
Family Division, in the same way as the wardship jurisdiction has
been conferred on them, there would be no difficulty. For the
reasons which I gave earlier, however, the parens patriae
jurisdiction with respect to adults of unsound mind no longer
exists, and if that jurisdiction, or something comparable with it, is
to be re-created, then it must be for the legislature and not for
the courts to do the re-creating. Rules of Court can only, as a
matter of law, prescribe the practice and procedure to be followed
by the court when it is exercising a jurisdiction which already
exists. They cannot confer jurisdiction, and, if they purported to
do so, they would be ultra vires.

In my opinion, therefore, a jurisdiction to approve or
disapprove an operation, which the Court of Appeal considered to
be available to the High Court, and appropriate to be exercised in
the present case, does not exist.

I turn, fourthly and lastly, to the jurisdiction to make
declarations. I do not think that it is right to describe this
jurisdiction as being “under R.S.C., Ord. 15, r. 16.” The

– 13 –

jurisdiction is part of the inherent jurisdiction of the High Court,
and the rule does no more than say that there is no procedural
objection to an action being brought for a declaration whether any
other kind of relief is asked for or available or not.

There can, in my view, be no doubt that the High Court has
jurisdiction, in a case like the present one, to make a declaration
with regard to the lawfulness of an operation for sterilisation
proposed to be carried out. As appears, however, from the
passages in the judgments of the three members of the Court of
Appeal which I set out earlier, they all concluded that procedure
by way of declaration, though used in the present case and three
previous cases similar to it, was not a satisfactory procedure to be
adopted. Their grounds of objection were these. First, that a
declaration changes nothing (Lord Donaldson of Lymington M.R. at
pp. 21-22 and Butler-Sloss L.J. at p. 56). Secondly, that an
application for a declaration might be unopposed and it was not
the ordinary practice to grant declarations by consent or where
there is no contrary claim (Neill L.J. at p. 42). Thirdly, that the
public interest requires that the court should give express approval
to a proposed operation and a declaration does not have that
effect (Lord Donaldson of Lymington M.R. at p. 22, Neill L.J. at
p. 43 and Butler-Sloss L.J. at p. 56). Fourthly, that a declaration
granted at first instance may have limited efficacy in any
subsequent litigation (Butler-Sloss L.J. at p. 56).

With respect to all three members of the Court of Appeal, I
do not consider that these objections are well founded. The first
objection, that a declaration changes nothing would be valid if the
substantive law were that a proposed operation could not lawfully
be performed without the prior approval of the court. As I
indicated earlier, however, that is not, in my view the substantive
law, nor did the Court of Appeal, as I understand their judgments,
hold that it was. The substantive law is that a proposed operation
is lawful if it is in the best interests of the patient, and unlawful
if it is not. What is required from the court, therefore, is not an
order giving approval to the operation, so as to make lawful that
which would otherwise be unlawful. What is required from the
court is rather an order which establishes by judicial process (the
“third opinion” so aptly referred to by Lord Donaldson of
Lymington M.R.) whether the proposed operation is in the best
interests of the patient and therefore lawful, or not in the
patient’s best interests and therefore unlawful.

The second objection, that the application for a declaration
might be unopposed and it is not the ordinary practice to grant
declarations by consent or where there is no contrary claim, would
only be valid in the absence of appropriate rules of procedure
governing an application of the kind under discussion. The same
objection could be raised against the procedure by way of
application for approval of the proposed operation favoured by the
Court of Appeal, in the absence of rules of procedure such as
those propounded by Lord Donaldson of Lymington M.R. and agreed
to by Neill and Butler-Sloss L.JJ. I accept, of course, that no
such rules of procedure have so far been made. But even without
them, there would have to be a summons for directions, preferably
before a judge, and he could be relied on to ensure that the
application was not unopposed, and that all necessary evidence,
both for and against the proposed operation, were adduced before
the court at the hearing.

– 14 –The third objection, that the public interest requires that
the court should give express approval to a proposed operation and
that a declaration does not have that effect appears to be largely
semantic. By that I mean that, whichever of the two forms of
procedure, if both were available, were to be used, the nature of
the inquiry which would have to be made by the court, and of the
reasoned decision which it would be obliged to give after carrying
out that inquiry, would be substantially the same.

The fourth objection, that a declaration granted at first
instance may have limited efficacy in any subsequent litigation was
not the subject matter of any argument before your Lordships.
My provisional view is that, whatever procedure were to be used,
only the parties to the proceedings and their privies would be
bound by, or could rely on, the decision made. In practice,
however, I think that that would be enough.

For the reasons which I have given, I am of opinion that,
having regard to the present limitations on the jurisdiction of the
court, by which I mean its inability to exercise the parens patriae
jurisdiction with respect to adults of unsound mind, the procedure
by way of declaration is, in principle, an appropriate and
satisfactory procedure to be used in a case of this kind.

(3) Procedure to be used when applying for a declaration

The Court of Appeal, as I indicated earlier, considered that
the correct form of proceeding in a case of this kind was an
application to the court for approval of the proposed operation.
On that basis, as appears from a part of the judgment of Lord
Donaldson of Lymington M.R. which I quoted earlier, he formulated
certain directions numbered (1) to (4) (with which both Neill and
Butler-Sloss L.JJ. agreed) to govern such applications pending the
making of appropriate amendments to R.S.C., Ord. 80, by the
Supreme Court Rule Committee. On the basis of my conclusion
that the correct form of proceeding is an application for a
declaration, it seems to me that, subject to certain alterations in
the wording of directions (1) and (2), those directions would be
equally appropriate to the latter kind of proceeding. I would alter
directions (1) and (2) so as to read:-

“(1) Applications for a declaration that a proposed
operation on or medical treatment for a patient can lawfully
be carried out despite the inability of such patient to
consent thereto should be by way of originating summons
issuing out of the Family Division of the High Court.

(2) The applicant should normally be those responsible for
the care of the patient or those intending to carry out the
proposed operation or other treatment, if it is declared to
be lawful.”

I would leave directions (3) and (4) as they are.

Counsel for the intervener, the Mental Health Act
Commission for England and Wales, invited your Lordships to say
that further and more detailed directions with regard to evidence
and other matters should be added to directions (1) to (4) above.

– 15 –

In my opinion there will, in cases of this kind, have to be a
summons for directions heard by a judge, and it should be left to
him to decide on the hearing of such summons, whether any, and,
if so what, further and more detailed directions should be given in
the particular case before him.

I consider also that further consideration needs to be given,
first, to the precise terms in which a declaration should be
granted, and, secondly, to the question whether any order
supplementary to the declaration should be made.

The form of order and declaration made by Scott Baker J.
in the present case was this: “It is ordered and declared that
under the Rules of the Supreme Court Ord., 15, r. 16 the
sterilisation of the plaintiff would not amount to an unlawful act
by reason only of the absence of the plaintiff’s consent.” In my
view, three changes in the form of the order should be made.
First, for the reasons which I gave earlier, I think that the
reference to R.S.C., Ord. 15, r. 16 is unnecessary and should be
omitted. Secondly, I think that the declaration should be amplified
in two ways: (a) to show the finding of fact on the foundation of
which it is made; and (b) to make it clear that it is made on the
basis of existing circumstances only. Thirdly, I think that
provision should be made for the possibility of a change in the
existing circumstances occurring before the declaration is acted
upon. Taking account of these three matters I consider that the
order should be in the following form, or something broadly similar
to it:

“(a) It is declared that the operation of sterilisation
proposed to be performed on the plaintiff being in the
existing circumstances in her best interests can
lawfully be performed on her despite her inability to
consent to it.

“(b) It is ordered 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.”

Your Lordships were referred by counsel in the course of
the hearing of the appeal to the way in which the problem raised
in this case has been dealt with in other countries, whose legal
systems were originally derived, to a large exent at any rate, from
the common law of England. These countries were the United
States of America, Canada and Australia, and a large file of
reported cases decided in them was made available, to some of
which specific reference was made. My Lords, the material so
supplied was of compelling interest, and it is right to express
gratitude to those concerned for the industry displayed in making
it available. In my view, however, the way in which the problem
has been dealt with in those other countries does not in the end
assist your Lordships to any great extent in the determination of
this appeal. This is because it is clear that, under their legal
systems, the parens patriae jurisdiction with respect to persons of
unsound mind is still alive and available for exercise by their
courts. It follows that those courts have powers to deal with the
problem concerned which are, unfortunately as I think, denied to

– 16 –

the courts here. In these circumstances I do not consider that it
would serve any useful purpose to examine and analyse this
extensive body of American, Canadian and Australian law, and I
trust that my omission to do so will not be regarded as indicating
disrespect of any kind toward the legal systems of those countries.

There is one further matter with which I think that it is
necessary to deal. That is the standard which the court should
apply in deciding whether a proposed operation is or is not in the
best interests of the patient. With regard to this Scott Baker J.
said, at p. 10 of the transcript:

“I do not think they [the doctors] are liable in battery
where they are acting in good faith and reasonably in the
best interests of their patients. I doubt whether the test is
very different from that for negligence.”

This was a reference to the test laid down in Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582, namely, that
a doctor will not be negligent if he establishes that he acted 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.

All three members of the Court of Appeal considered that
the Bolam test was unsufficiently stringent for deciding whether an
operation or other medical treatment was in a patient’s best
interests. Lord Donaldson of Lymington M.R. said, at pp. 18-19 of
the transcript:

“Just as the law and the courts rightly pay great, but not
decisive, regard to accepted professional wisdom in relation
to the duty of care in the law of medical negligence (the
Bolam test), so they equally would have regard to such
wisdom in relation to decisions whether or not and how to
treat incompetent patients in the context of the law of
trespass to the person. However, both the medical
profession and the courts have to keep the special status of
such a patient in the forefront of their minds. The ability
of the ordinary adult patient to exercise a free choice in
deciding whether to accept or to refuse medical treatment
and to choose between treatments is not to be dismissed as
desirable but inessential. It is a crucial factor in relation
to all medical treatment. If it is necessarily absent,
whether temporarily in an emergency situation or
permanently in a case of mental disability, other things
being equal there must be greater caution in deciding
whether to treat and, if so, how to treat, although I do not
agree that this extends to limiting doctors to treatment
upon the necessity for which there are ‘no two views’ (per
Wood J. in T. v. T. [1988] Fam. 52, 62). There will always
or usually be a minority view and this approach, if strictly
applied, would often rule out all treatment. On the other
hand, the existence of a significant minority view would
constitute a serious contra-indication.”

Neill L.J. said, at pp. 40-41:

– 17 –

“I have therefore come to the conclusion that, if the
operation is necessary and the proper safeguards are
observed, the performance of a serious operation, including
an operation for sterilisation, on a person who by reason of
a lack of mental capacity is unable to give his or her
consent is not a trespass to the person or otherwise
unlawful.

“It therefore becomes necessary to consider what is meant
by ‘a necessary operation.’ In seeking to define the
circumstances in which an operation can properly be carried
out Scott Baker J. said this:

‘I do not think they are liable in battery where they
are acting in good faith and reasonably in the best
interests of their patients. I doubt whether the test
is very different from that for negligence.’

“With respect, I do not consider that this test is sufficiently
stringent. A doctor may defeat a claim in negligence if he
establishes that he acted in accordance with a practice
accepted at the time as proper by a responsible body of
medical opinion skilled in the particular form of treatment
in question. This is the test laid down in Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582. But
to say that it is not negligent to carry out a particular
form of treatment does not mean that that treatment is
necessary. I would define necessary in this context as that
which the general body of medical opinion in the particular
specialty would consider to be in the best interests of the
patient in order to maintain the health and to secure the
well-being of the patient. One cannot expect unanimity but
it should be possible to say of an operation which is
necessary in the relevant sense that it would be
unreasonable in the opinion of most experts in the field not
to make the operation available to the patient. One must
consider the alternatives to an operation and the dangers or
disadvantages to which the patient may be exposed if no
action is taken. The question becomes: What action does
the patient’s health and welfare require?”

Butler-Sloss L.J., at p. 57, agreed with Neill L.J.

With respect to the Court of Appeal, I do not agree that
the Bolam test is inapplicable to cases of performing operations
on, or giving other treatment to, adults incompetent to give
consent. In order that the performance of such operations on, and
the giving of such other treatment to, such adults should be
lawful, they must be in their best interests. If doctors were to be
required, in deciding whether an operation or other treatment was
in the best interests of adults incompetent to give consent, to
apply some test more stringent than the Bolam test, the result
would be that that such adults would, in some circumstances at
least, be deprived of the benefit of medical treatment which
adults competent to give consent would enjoy. In my opinion it
would be wrong for the law, in its concern to protect such adults,
to produce such a result.

– 18 –

For the reasons which I have given I would dismiss the
appeal, subject to varying the order of Scott Baker J. by
substituting for the declaration made by him the amplified
declaration and further order which I formulated earlier.

LORD GRIFFITHS

My Lords,

The argument in this appeal has ranged far and wide in
search of a measure to protect those who cannot protect
themselves from the insult of an unnecessary sterilisation. Every
judge who has considered the problem has recognised that there
should be some control mechanism imposed upon those who have
the care of infants or mentally incompetent women of child
bearing age to prevent or at least inhibit them from sterilising the
women without approval of the High Court. I am, I should make
it clear, speaking now and hereafter of an operation for
sterilisation which is proposed not for the treatment of diseased
organs but an operation on a woman with healthy reproductive
organs in order to avoid the risk of pregancy. The reasons for the
anxiety about a sterilisation which it is proposed should be carried
out for other than purely medical reasons, such as the removal of
the ovaries to prevent the spread of cancer, are readily
understandable and are shared throughout the common law world.

We have been taken through many authorities in the United
States, Australia and Canada which stress the danger that
sterilisation may be proposed in circumstances which are not truly
in the best interests of the woman but for the convenience of
those who are charged with her care. In the United States and
Australia the solution has been to declare, that in the case of a
woman who either because of infancy or mental incompetence
cannot give her consent, the operation may not be performed
without the consent of the court. In Canada the Supreme Court
has taken an even more extreme stance and declared that
sterilisation is unlawful unless performed for therapeutic reasons,
which I understand to be as a life saving measure or for the
prevention of the spread of disease: see In re Eve (1986) 31 D.L.R.
(4th) 1. This extreme position was rejected by this House In re B.
(A Minor) (Wardship: Sterilisation) [1988] A.C. 199 which recognised
that an operation might be in the best interests of a woman even
though carried out in order to protect her from the trauma of a
pregnancy which she could not understand and with which she
could not cope. Nevertheless Lord Templeman stressed that such
an operation should not be undertaken without the approval of a
High Court judge of the Family Division. In this country the case
of In re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185
stands as a stark warning of the danger of leaving the decision to
sterilise in the hands of those having the the immediate care of
the woman, even when they genuinely believe that they are acting
in her best interests.

I have had the advantage of reading the speeches of Lord
Brandon of Oakbrook and Lord Goff of Chieveley and there is

– 19 –

much therein with which I agree. I agree that those charged with
the care of the mentally incompetent are protected from any
criminal or tortious action based on lack of consent. Whether one
arrives at this conclusion by applying a principle of “necessity” as
do Lord Goff of Chieveley and Lord Brandon of Oakbrook or by
saying that it is in the public interest as did Neill L.J. in the
Court of Appeal, appear to me to be inextricably interrelated
conceptual justifications for the humane development of the
common law. Why is it necessary that the mentally incompetent
should be given treatment to which they lack the capacity to
consent? The answer must surely be because it is in the public
interest that it should be so.

In a civilised society the mentally incompetent must be
provided with medical and nursing care and those who look after
them must do their best for them. Stated in legal terms the
doctor who undertakes responsibility for the treatment of a mental
patient who is incapable of giving consent to treatment must give
the treatment that he considers to be in the best interests of his
patient, and the standard of care required of the doctor will be
that laid down in Bolam v. Friern Hospital Management Committee
[1957] 1 W.L.R. 582. The doctor will however be subject to the
specific statutory constraints on treatment for mental disorder
provided by Part IV of the Mental Health Act 1983. Certain
radical treatments such as surgical destruction of brain tissue
cannot be performed without the consent of the patient and if the
patient is incapable of giving consent the operation cannot be
performed, however necessary it may be considered by the doctors.
Other less radical treatment can only be given with the consent of
the patient, or if the patient will not or cannot consent, on the
authority of a second medical opinion. There are however no
statutory provisions that deal with sterilisation.

I agree with Lord Brandon’s analysis of the provisions of the
Mental Health Act 1983 and in particular that in its context the
expression “the affairs of patients” in Part VII cannot be construed
as including medical treatment and thus providing a substitute for
the parens patriae jurisdiction previously vested in the Lord
Chancellor and the judges of the High Court, Chancery Division,
which was removed by warrant under Sign Manual dated 1
November 1960, contemporaneously with the passing of the Mental
Health Act 1959.

Finally I agree that an action for a declaration is available
as a mechanism by which a proposed sterilisation may be
investigated to ensure that it is in the woman’s best interests.

But I cannot agree that it is satisfactory to leave this grave
decision with all its social implications in the hands of those
having the care of the patient with only the expectation that they
will have the wisdom to obtain a declaration of lawfulness before
the operation is performed. In my view the law ought to be that
they must obtain the approval of the court before they sterilise a
woman incapable of giving consent and that it is unlawful to
sterilise without that consent. I believe that it is open to your
Lordships to develop a common law rule to this effect. Although
the general rule is that the individual is the master of his own
fate the judges through the common law have, in the public
interest, imposed certain contraints on the harm that people may

– 20 –

consent to being inflicted on their own bodies. Thus although
boxing is a legal sport a bare knuckle prize fight in which more
grievous injury may be inflicted is unlawful (Reg. v. Coney (1882)
8 Q.B.D. 534), and so is fighting which may result in actual bodily
harm: see Attorney General’s Reference (No. 6 of 1980) [1981]
Q.B. 715. So also is it unlawful to consent to the infliction of
serious injury on the body in the course of the practice of sexual
perversion Rex v. Donovan [1934] 2 K.B. 498. Suicide was
unlawful at common law until Parliament intervened by the Suicide
Act 1961.

The common law has, in the public interest, been developed
to forbid the infliction of injury on those who are fully capable of
consenting to it. The time has now come for a further
development to forbid, again in the public interest, the sterilisation
of a woman with healthy reproductive organs who, either through
mental incompetence or youth, is incapable of giving her fully
informed consent unless such an operation has been enquired into
and sanctioned by the High Court. Such a common law rule would
provide a more effective protection than the exercise of parens
patriae jurisdiction which is dependent upon some interested party
coming forward to invoke the jurisdiction of the court. The
parens patriae jurisdiction is in any event now only available in
the case of minors through their being made wards of court. I
would myself declare that on grounds of public interest an
operation to sterilise a woman incapable of giving consent either
on grounds of age or mental incapacity is unlawful if performed
without the consent of the High Court. I fully recognise that in
so doing I would be making new law. However the need for such
a development has been identified in a number of recent cases and
in the absence of any parliamentary response to the problem it is
my view that the judges can and should accept responsibility to
recognise the need and to adapt the common law to meet it. If
such a development did not meet with public approval it would
always be open to Parliament to reverse it or to alter it by
perhaps substituting for the opinion of the High Court judge the
second opinion of another doctor as urged by counsel for the
Mental Health Tribunal.

As I know that your Lordships consider that it is not open
to you to follow the course I would take I must content myself by
accepting, but as second best, the procedure by way of declaration
proposed by Lord Brandon of Oakbrook and agree to the dismissal
of this appeal.

LORD GOFF OF CHIEVELEY

My Lords,

The question in this case is concerned with the lawfulness
of a proposed operation of sterilisation upon the plaintiff F., a
woman of 36 years of age, who by reason of her mental incapacity
is disabled from giving her consent to the operation. It is well
established that, as a general rule, the performance of a medical
operation upon a person without his or her consent is unlawful, as
constituting both the crime of battery and the tort of trespass to

– 21 –

the person. Furthermore, before Scott Baker J. and the Court of
Appeal, it was common ground between the parties that there was
no power in the court to give consent on behalf of F. to the
proposed operation of sterilisation, or to dispense with the need
for such consent. This was because it was common ground that
the parens patriae jurisdiction in respect of persons suffering from
mental incapacity, formerly vested in the courts by Royal Warrant
under the Sign Manual, had ceased to be so vested by revocation
of the last warrant on 1 November 1960; and further that there
there was no statutory provision which could be invoked in its
place. Before your Lordships, having regard to the importance of
the matter, both those propositions were nevertheless subjected to
close scrutiny, and Mr. Munby (for the Official Solicitor) deployed,
with great ability, such arguments as can be advanced that the
parens patriae jurisdiction is still vested in the courts as a matter
of common law, and that the necessary statutory jurisdiction is to
be found in Part VII of the Mental Health Act 1983, and in
particular in sections 93, 95 and 96 of the Act. However, with
the assistance of counsel, I for my part have become satisfied that
the concessions made below on these points were rightly made.
On both points I find myself to be respectfully in agreement with
the opinion expressed by my noble and learned friend, Lord
Brandon of Oakbrook, and I do not think it necessary for me to
add anything.

It follows that, as was recognised in the courts below, if
the operation upon F. is to be justified, it can only be justified on
the applicable principles of common law. The argument of counsel
revealed the startling fact that there is no English authority on
the question whether as a matter of common law (and if so in
what circumstances) medical treatment can lawfully be given to a
person who is disabled by mental incapacity from consenting to it.
Indeed, the matter goes further; for a comparable problem can
arise in relation to persons of sound mind who are, for example,
rendered unconscious in an accident or rendered speechless by a
catastrophic stroke. All such persons may require medical
treatment and, in some cases, surgical operations. All may require
nursing care. In the case of mentally disordered persons, they
may require care of a more basic kind – dressing, feeding, and so
on – to assist them in their daily life, as well as routine
treatment by doctors and dentists. It follows that, in my opinion,
it is not possible to consider in isolation the lawfulness of the
proposed operation of sterilisation in the present case. It is
necessary first to ascertain the applicable common law principles
and then to consider the question of sterilisation against the
background of those principles.

Mr. Munby, for the Official Solicitor, advanced the extreme
argument that, in the absence of a parens patriae or statutory
jurisdiction, no such treatment or care of the kind I have
described can lawfully be given to a mentally disordered person
who is unable to consent to it. This is indeed a startling
proposition, which must also exclude treatment or care to persons
rendered unconscious or unable to speak by accident or illness.
For centuries, treatment and care must have been given to such
persons, without any suggestion that it was unlawful to do so. I
find it very difficult to believe that the common law is so
deficient as to be incapable of providing for so obvious a need.
Even so, it is necessary to examine the point as a matter of
principle.

– 22 –

I start with the fundamental principle, now long established,
that every person’s body is inviolate. As to this, I do not wish to
depart from what I myself said in the judgment of the Divisional
Court in Collins v. Wilcock [1984] 1 W.L.R. 1172, and in particular
from the statement, at p. 1177, that the effect of this principle is
that everybody is protected not only against physical injury but
against any form of physical molestation.

Of course, as a general rule physical interference with
another person’s body is lawful if he consents to it; though in
certain limited circumstances the public interest may require that
his consent is not capable of rendering the act lawful. There are
also specific cases where physical interference without consent
may not be unlawful – chastisement of children, lawful arrest,
self-defence, the prevention of crime, and so on. As I pointed out
in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177, a broader
exception has been created to allow for the exigencies of everyday
life – jostling in a street or some other crowded place, social
contact at parties, and such like. This exception has been said to
be founded on implied consent, since those who go about in public
places, or go to parties, may be taken to have impliedly consented
to bodily contact of this kind. Today this rationalisation can be
regarded as artificial; and in particular, it is difficult to impute
consent to those who, by reason of their youth or mental disorder,
are unable to give their consent. For this reason, I consider it
more appropriate to regard such cases as falling within a general
exception embracing all physical contact which is generally
acceptable in the ordinary conduct of everyday life.

In the old days it used to be said that, for a touching of
another’s person to amount to a battery, it had to be a touching
“in anger” (see Cole v. Turner (1704) 6 Mod. 149 per Holt C.J.);
and it has recently been said that the touching must be “hostile”
to have that effect (see Wilson v. Pringle [1987] QB 237, 253). I
respectfully doubt whether that is correct. A prank that gets out
of hand; an over-friendly slap on the back; surgical treatment by a
surgeon who mistakenly thinks that the patient has consented to it
– all these things may transcend the bounds of lawfulness, without
being characterised as hostile. Indeed the suggested qualification
is difficult to reconcile with the principle that any touching of
another’s body is, in the absence of lawful excuse, capable of
amounting to a battery and a trespass. Furthermore, in the case
of medical treatment, we have to bear well in mind the libertarian
principle of self-determination which, to adopt the words of
Cardozo J. (in Schloendorff v. Society of New York Hospital (1913)
105 N.E. 92, 93) recognises that:

“Every human being of adult years and sound mind has a
right to determine what shall be done with his own body,
and a surgeon who performs an operation without the
patient’s consent commits an assault.”

This principle has been reiterated in more recent years by Lord
Reid in S. v. McC. (orse. S.) and M. (D.S. intervened; W. v. W.
[1972] A.C. 24, 43.

It is against this background that I turn to consider the
question whether, and if so when, medical treatment or care of a

– 23 –

mentally disordered person who is, by reason of his incapacity,
incapable of giving his consent, can be regarded as lawful. As is
recognised in Cardozo J.’s statement of principle, and elsewhere
(see e.g. Sidaway v. Board of Governors of the Bethlem Royal
Hospital and the Maudsley Hospital [1985] AC 871, 882 per Lord
Scarman), some relaxation of the law is required to accommodate
persons of unsound mind. In Wilson v. Pringle, the Court of
Appeal considered that treatment or care of such persons may be
regarded as lawful, as falling within the exception relating to
physical contact which is generally acceptable in the ordinary
conduct of everyday life. Again, I am with respect unable to
agree. That exception is concerned with the ordinary events of
everyday life – jostling in public places and such like – and affects
all persons, whether or not they are capable of giving their
consent. Medical treatment – even treatment for minor ailments –
does not fall within that category of events. The general rule is
that consent is necessary to render such treatment lawful. If such
treatment administered without consent is not to be unlawful, it
has to be justified on some other principle.

Upon what principle can medical treatment be justified when
given without consent? We are searching for a principle upon
which, in limited circumstances, recognition may be given to a
need, in the interests of the patient, that treatment should be
given to him in circumstances where he is (temporarily or
permanently) disabled from consenting to it. It is this criterion of
a need which points to the principle of necessity as providing
justification.

That there exists in the common law a principle of
necessity which may justify action which would otherwise be
unlawful is not in doubt. But historically the principle has been
seen to be restricted to two groups of cases, which have been
called cases of public necessity and cases of private necessity.
The former occurred when a man interfered with another man’s
property in the public interest – for example (in the days before
we could dial 999 for the fire brigade) the destruction of another
man’s house to prevent the spread of a catastrophic fire, as indeed
occurred in the Great Fire of London in 1666. The latter cases
occurred when a man interfered with another’s property to save
his own person or property from imminent danger – for example,
when he entered upon his neighbour’s land without his consent, in
order to prevent the spread of fire onto his own land.

There is, however, a third group of cases, which is also
properly described as founded upon the principle of necessity and
which is more pertinent to the resolution of the problem in the
present case. These cases are concerned with action taken as a
matter of necessity to assist another person without his consent.
To give a simple example, a man who seizes another and forcibly
drags him from the path of an oncoming vehicle, thereby saving
him from injury or even death, commits no wrong. But there are
many emanations of this principle, to be found scattered through
the books. These are concerned not only with the preservation of
the life or health of the assisted person, but also with the
preservation of his property (sometimes an animal, sometimes an
ordinary chattel) and even to certain conduct on his behalf in the
administration of his affairs. Where there is a pre-existing
relationship between the parties, the intervenor is usually said to

– 24 –

act as an agent of necessity on behalf of the principal in whose
interests he acts, and his action can often, with not too much
artificiality, be referred to the pre-existing relationship between
them. Whether the intervenor may be entitled either to
reimbursement or to remuneration raises separate questions which
are not relevant in the present case.

We are concerned here with action taken to preserve the
life, health or well-being of another who is unable to consent to
it. Such action is sometimes said to be justified as arising from
an emergency; in Prosser and Keeton on Torts, 5th edition, p. 117,
the action is said to be privileged by the emergency. Doubtless,
in the case of a person of sound mind, there will ordinarily have
to be an emergency before such action taken without consent can
be lawful; for otherwise there would be an opportunity to
communicate with the assisted person and to seek his consent.
But this is not always so; and indeed the historical origins of the
principle of necessity do not point to emergency as such as
providing the criterion of lawful intervention without consent. The
old Roman doctrine of negotiorum gestio presupposed not so much
an emergency as a prolonged absence of the dominus from home
as justifying intervention by the gestor to administer his affairs.
The most ancient group of cases in the common law, concerned
with action taken by the master of a ship in distant parts in the
interests of the shipowner, likewise found its origin in the
difficulty of communication with the owner over a prolonged
period of time – a difficulty overcome today by modern means of
communication. In those cases, it was said that there had to be
an emergency before the master could act as agent of necessity;
though the emergency could well be of some duration. But when
a person is rendered incapable of communication either
permanently or over a considerable period of time (through illness
or accident or mental disorder), it would be an unusual use of
language to describe the case as one of “permanent emergency” –
if indeed such a state of affairs can properly be said to exist. In
truth, the relevance of an emergency is that it may give rise to a
necessity to act in the interests of the assisted person, without
first obtaining his consent. Emergency is however not the
criterion or even a pre-requisite; it is simply a frequent origin of
the necessity which impels intervention. The principle is one of
necessity, not of emergency.

We can derive some guidance as to the nature of the
principle of necessity from the cases on agency of necessity in
mercantile law. When reading those cases, however, we have to
bear in mind that it was there considered that (since there was a
pre-existing relationship between the parties) there was a duty on
the part of the agent to act on his principal’s behalf in an
emergency. From these cases it appears that the principle of
necessity connotes that circumstances have arisen in which there is
a necessity for the agent to act on his principal’s behalf at a time
when it is in practice not possible for him to obtain his principal’s
instructions so to do. In such cases, it has been said that the
agent must act bona fide in the interests of his principal (see
Prager v. Blatspiel Stamp & Heacock Ltd. [1924] 1 K.B. 566, 572
per McCardie J.). A broader statement of the principle is to be
found in the advice of the Privy Council delivered by Sir Montague
Smith in Australasian Steam Navigation Co. v. Morse (1872) L.R. 4
P.C 222, 230, in which he said:

– 25 –

“… when by the force of circumstances a man has the
duty cast upon him of taking some action for another, and
under that obligation, adopts the course which, to the
judgment of a wise and prudent man, is apparently the best
for the interest of the persons for whom he acts in a given
emergency, it may properly be said of the course so taken,
that it was, in a mercantile sense, necessary to take it.”

In a sense, these statements overlap. But from them can be
derived the basic requirements, applicable in these cases of
necessity, that, to fall within the principle, not only (1) must there
be a necessity to act when it is not practicable to communicate
with the assisted person, but also (2) the action taken must be
such as a reasonable person would in all the circumstances take,
acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that
officious intervention cannot be justified by the principle of
necessity. So intervention cannot be justified when another more
appropriate person is available and willing to act; nor can it be
justified when it is contrary to the known wishes of the assisted
person, to the extent that he is capable of rationally forming such
a wish. On the second limb of the principle, the introduction of
the standard of a reasonable man should not in the present context
be regarded as materially different from that of Sir Montague
Smith’s “wise and prudent man,” because a reasonable man would,
in the time available to him, proceed with wisdom and prudence
before taking action in relation to another man’s person or
property without his consent. I shall have more to say on this
point later. Subject to that, I hesitate at present to indulge in
any greater refinement of the principle, being well aware of many
problems which may arise in its application – problems which it is
not necessary, for present purposes, to examine. But as a general
rule, if the above criteria are fulfilled, interference with the
assisted person’s person or property (as the case may be) will not
be unlawful. Take the example of a railway accident, in which
injured passengers are trapped in the wreckage. It is this principle
which may render lawful the actions of other citizens – railway
staff, passengers or outsiders – who rush to give aid and comfort
to the victims: the surgeon who amputates the limb of an
unconscious passenger to free him from the wreckage; the
ambulance man who conveys him to hospital; the doctors and
nurses who treat him and care for him while he is still
unconscious. Take the example of an elderly person who suffers a
stroke which renders him incapable of speech or movement. It is
by virtue of this principle that the doctor who treats him, the
nurse who cares for him, even the relative or friend or neighbour
who comes in to look after him, will commit no wrong when he or
she touches his body.

The two examples I have given illustrate, in the one case,
an emergency, and in the other, a permanent or semi-permanent
state of affairs. Another example of the latter kind is that of a
mentally disordered person who is disabled from giving consent. I
can see no good reason why the principle of necessity should not
be applicable in his case as it is in the case of the victim of a
stroke. Furthermore, in the case of a mentally disordered person,
as in the case of a stroke victim, the permanent state of affairs
calls for a wider range of care than may be requisite in an

– 26 –

emergency which arises from accidental injury. When the state of
affairs is permanent, or semi-permanent, action properly taken to
preserve the life, health or well-being of the assisted person may
well transcend such measures as surgical operation or substantial
medical treatment and may extend to include such humdrum
matters as routine medical or dental treatment, even simple care
such as dressing and undressing and putting to bed.

The distinction I have drawn between cases of emergency,
and cases where the state of affairs is (more or less) permanent,
is relevant in another respect. We are here concerned with
medical treatment, and I limit myself to cases of that kind.
Where, for example, a surgeon performs an operation without his
consent on a patient temporarily rendered unconscious in an
accident, he should do no more than is reasonably required, in the
best interests of the patient, before he recovers consciousness. I
can see no practical difficulty arising from this requirement, which
derives from the fact that the patient is expected before long to
regain consciousness and can then be consulted about longer term
measures. The point has however arisen in a more acute form
where a surgeon, in the course of an operation, discovers some
other condition which, in his opinion, requires operative treatment
for which he has not received the patient’s consent. In what
circumstances he should operate forthwith, and in what
circumstances he should postpone the further treatment until he
has received the patient’s consent, is a difficult matter which has
troubled the Canadian Courts (see Marshall v. Curry [1933] 3
D.L.R. 260, and Murray v. McMurchy [1949] 2 D.L.R. 442), but
which it is not necessary for your Lordships to consider in the
present case.

But where the state of affairs is permanent or semi-
permanent, as may be so in the case of a mentally disordered
person, there is no point in waiting to obtain the patient’s consent.
The need to care for him is obvious; and the doctor must then act
in the best interests of his patient, just as if he had received his
patient’s consent so to do. Were this not so, much useful
treatment and care could, in theory at least, be denied to the
unfortunate. It follows that, on this point, I am unable to accept
the view expressed by Neill L.J. in the Court of Appeal, that the
treatment must be shown to have been necessary. Moreover, in
such a case, as my noble and learned friend Lord Brandon of
Oakbrook has pointed out, a doctor who has assumed responsibility
for the care of a patient may not only be treated as having the
patient’s consent to act, but may also be under a duty so to act.
I find myself to be respectfully in agreement with Lord Donaldson
of Lymington M.R., when he said:

“I see nothing incongruous in doctors and others who have a
caring responsibility being required, when acting in relation
to an adult who is incompetent, to exercise a right of
choice in exactly the same way as would the court or
reasonable parents in relation to a child, making due
allowance, of course, for the fact that the patient is not a
child, and I am satisfied that that is what the law does in
fact require.”

In these circumstances, it is natural to treat the deemed authority
and the duty as interrelated. But I feel bound to express my

– 27 –

opinion that, in principle, the lawfulness of the doctor’s action is,
at least in its origin, to be found in the principle of necessity.
This can perhaps be seen most clearly in cases where there is no
continuing relationship between doctor and patient. The “doctor in
the house” who volunteers to assist a lady in the audience who,
overcome by the drama or by the heat in the theatre, has fainted
away, is impelled to act by no greater duty than that imposed by
his own Hippocratic oath. Furthermore, intervention can be
justified in the case of a non-professional, as well as a
professional, man or woman who has no pre-existing relationship
with the assisted person – as in the case of a stranger who rushes
to assist an injured man after an accident. In my opinion, it is
the necessity itself which provides the justification for the
intervention.

I have said that the doctor has to act in the best interests
of the assisted person. In the case of routine treatment of
mentally disordered persons, there should be little difficulty in
applying this principle. In the case of more serious treatment, I
recognise that its application may create problems for the medical
profession; however, in making decisions about treatment, the
doctor must act in accordance with a responsible and competent
body of relevant professional opinion, on the principles set down in
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R.
582. No doubt, in practice, a decision may involve others besides
the doctor. It must surely be good practice to consult relatives
and others who are concerned with the care of the patient,
Sometimes, of course, consultation with a specialist or specialists
will be required; and in others, especially where the decision
involves more than a purely medical opinion, an inter-disciplinary
team will in practice participate in the decision. It is very
difficult, and would be unwise, for a court to do more than to
stress that, for those who are involved in these important and
sometimes difficult decisions, the over-riding consideration is that
they should act in the best interests of the person who suffers
from the misfortune of being prevented by incapacity from
deciding for himself what should be done to his own body, in his
own best interests.

In the present case, your Lordships have to consider whether
the foregoing principles apply in the case of a proposed operation
of sterilisation upon an adult woman of unsound mind, or whether
sterilisation is (perhaps with one or two other cases) to be placed
in a separate category to which special principles apply. Again,
Mr. Munby assisted your Lordships by deploying the argument that,
in the absence of any parens patriae jurisdiction, sterilisation of an
adult woman of unsound mind, who by reason of her mental
incapacity is unable to consent, can never be lawful. He founded
his submission upon a right of reproductive autonomy or right to
control one’s own reproduction, which necessarily involves the right
not to be sterilised involuntarily; upon the fact that sterilisation
involves irreversible interference with the patient’s most important
organs; upon the fact that it involves interference with organs
which are functioning normally; upon the fact that sterilisation is
a topic upon which medical views are often not unanimous; and
upon the undesirability, in the case of a mentally disordered
patient, of imposing a “rational” solution upon an incompetent
patient. Having considered these submissions with care, I am of
the opinion that neither singly nor as a whole do they justify the

– 28 –

conclusion for which Mr. Munby contended. Even so, while
accepting that the principles which I have stated are applicable in
the case of sterilisation, the matters relied upon by Mr. Munby
provide powerful support for the conclusion that the application of
those principles in such a case calls for special care. There are
other reasons which support that conclusion. It appears, for
example, from reported cases in the United States that there is a
fear that those responsible for mental patients might (perhaps
unwittingly) seek to have them sterilised as a matter of
administrative convenience. Furthermore, the English case of In re
D. (A Minor) (Wardship): Sterilisation) [1976] Fam. 185 provides a
vivid illustration of the fact that a highly qualified medical
practitioner, supported by a caring mother, may consider it right
to sterilise a mentally retarded girl in circumstances which prove,
on examination, not to require such an operation in the best
interests of the girl. Matters such as these, coupled with the
fundamental nature of the patient’s organs with which it is
proposed irreversibly to interfere, have prompted courts in the
United States and in Australia to pronounce that, in the case of a
person lacking the capacity to consent, such an operation should
only be permitted with the consent of the court. Such decisions
have of course been made by courts which have vested in them
the parens patriae jurisdiction, and so have power, in the exercise
of such jurisdiction, to impose such a condition. They are not
directly applicable in this country, where that jurisdiction has been
revoked; for that reason alone I do not propose to cite passages
from the American and Australian cases although, like my noble
and learned friend, Lord Brandon of Oakbrook, I have read the
judgments with great respect and found them to be of compelling
interest. I refer in particular to In re Grady (1981) 426 A. 2d.
467 in the United States; and, in Australia, to the very full and
impressive consideration of the matter by Nicholson C.J. in In re
Jane, 22 December 1988 (as yet unreported), who in particular
stressed the importance of independent representation by some
disinterested third party on behalf of the patient (there a minor).

Although the parens patriae jurisdiction in the case of adults
of unsound mind is no longer vested in courts in this country, the
approach adopted by the courts in the United States and in
Australia provides, in my opinion, strong support for the view that,
as a matter of practice, the operation of sterilisation should not
be performed on an adult person who lacks the capacity to consent
to it without first obtaining the opinion of the court that the
operation is, in the circumstances, in the best interests of the
person concerned, by seeking a declaration that the operation is
lawful. (I shall return later in this speech to the appropriateness
of the declaratory remedy in cases such as these). In my opinion,
that guidance should be sought in order to obtain an independent,
objective and authoritative view on the lawfulness of the procedure
in the particular circumstances of the relevant case, after a
hearing at which it can be ensured that there is independent
representation on behalf of the person upon whom it is proposed to
perform the operation. This approach is consistent with the
opinion expressed by Lord Templeman in In re B (A Minor)
(Wardship: Sterilisation) [1988] A.C. 199, 205-206, that, in the
case of a girl who is still a minor, sterilisation should not be
performed upon her unless she has first been made a ward of
court and the court has, in the exercise of its wardship
jurisdiction, given its authority to such a step. He said:

– 29 –

“No one has suggested a more satisfactory tribunal or a
more satisfactory method of reaching a decision which
vitally concerns an individual but also involves principles of
law, ethics and medical practice.”

I recognise that the requirement of a hearing before a court is
regarded by some as capable of deterring certain medical
practitioners from advocating the procedure of sterilisation; but I
trust and hope that it may come to be understood that court
procedures of this kind, conducted sensitively and humanely by
judges of the Family Division, so far as possible and where
appropriate in the privacy of chambers, are not to be feared by
responsible practitioners.

It was urged before your Lordships by Mr. Ouseley, on
behalf of the Mental Health Act Commission (the Commission
having been given leave to intervene in the proceedings), that a
court vested with the responsibility of making a decision in such a
case, having first ensured that an independent second opinion has
been obtained from an appropriate consultant of the appropriate
speciality, should not, if that second opinion supports the proposal
that sterilisation should take place, exercise any independent
judgment but should simply follow the opinion so expressed. For
my part, I do not think that it is possible or desirable for a court
so to exercise its jurisdiction. In all proceedings where expert
opinions are expressed, those opinions are listened to with great
respect; but, in the end, the validity of the opinion has to be
weighed and judged by the court. This applies as much in cases
where the opinion involves a question of judgment as it does in
those where it is expressed on a purely scientific matter. For a
court automatically to accept an expert opinion, simply because it
is concurred in by another appropriate expert, would be a denial of
the function of the court. Furthermore, the proposal of the
Commission is impossible to reconcile with the American and
Australian authorities which stress the need for a court decision
after a hearing which involves separate representation on behalf of
the person upon whom it is proposed to perform the operation.
Having said this, I do not feel that the Commission need fear that
the opinions of the experts will in any way be discounted. On the
contrary, they will be heard with the greatest respect; and, as the
present case shows, there is a high degree of likelihood that they
will be accepted.

I turn finally to the question of the procedure adopted in
the present case, in which a declaration is sought. The relief
claimed by the plaintiff in these proceedings is a declaration that
to effect a sterilisation will not amount to an unlawful act by
reason only of the absence of the plaintiff’s consent. Scott Baker
J. granted the declaration as asked. The Court of Appeal
dismissed the appeal and affirmed the order of Scott Baker J.
Even so, all members of the Court of Appeal expressed the opinion
that procedure by way of declaration was not appropriate in a
case such as this. Lord Donaldson of Lymington M.R. said:

– 30 –

sensitive and potentially controversial forms of treatment
the public interest requires that the courts should give
express approval before the treatment is carried out and
thereby provide an independent and broad based ‘third
opinion’.”

He then proceeded, with the concurrence of the other members of
the court, to make directions in respect of applications for the
court’s approval of medical or surgical treatment, pending the
appearance of a new Rule of the Supreme Court (to be added to
R.S.C., Ord. 80) or a Practice Direction of the President of the
Family Division.

With all respect to the Master of the Rolls, in the absence
of any parens patriae jurisdication vested in the High Court I know
of no jurisdictional basis upon which any such Rule of the Supreme
Court or Practice Direction, still less directions such as he
proposed, could be founded. The course of action proposed by the
Master of the Rolls presupposes the existence of a jurisdiction
under which approval by the High Court is required before the
relevant medical or surgical treatment is performed. There is at
present no such jurisdiction; and the jurisdiction of the High Court
cannot be expanded by a Rule of the Supreme Court or Practice
Direction or other direction. The present position is that the
lawfulness of medical or surgical treatment cannot, in the case of
adults, depend upon the approval of the High Court. In my
opinion, the course of action proposed by the Master of the Rolls
would be ultra vires.

However, I do not altogether share the misgivings expressed
by him (and shared by his other colleagues in the Court of Appeal)
about the procedure for declaratory relief. First of all, I can see
no procedural objection to the declaration granted by the judge,
either as a matter of jurisdiction, or as a matter of exercise of
the discretion conferred by the relevant Rule of the Supreme
Court, Ord. 15, r. 16. Rule 16 provides:

“No action or other proceeding shall be open to objection on
the ground that a merely declaratory judgment or order is
sought thereby, and the Court may make binding
declarations of right whether or not any consequential relief
is or could be claimed.”

In Guaranty Trust Co. of New York v. Hannay & Co. [1915] 2 K.B.
536, a leading case in which an unsuccessful attack was mounted
on the vires of the then Ord. 25, r. 5 (the predecessor of the
present rule), forthright statements were made by both Pickford
and Bankes L.JJ. as to the breadth of the jurisdiction conferred by
the rule. Pickford L.J. said, at p. 562:

“I think therefore that the effect of the rule is to give a
general power to make a declaration whether there be a
cause of action or not, and at the instance of any party
who is interested in the subject matter of the declaration.”

And Bankes L.J. said, at p. 572:

“It is essential, however, that a person who seeks to take
advantage of the rule must be claiming relief. What is

– 31 –

meant by this word relief? When once it is established, as
I think it is established, that relief is not confined to relief
in respect of a cause of action it seems to follow that the
word itself must be given its fullest meaning. There is,
however, one limitation which must always be attached to
it, that is to say, the relief claimed must be something
which it would not be unlawful or unconstitutional or
inequitable for the court to grant or contrary to the
accepted principles upon which the court exercises its
jurisdiction. Subject to this limitation I see nothing to
fetter the discretion of the court in exercising a jurisdiction
under the rule to grant relief, and having regard to general
business convenience and the importance of adapting the
machinery of the courts to the needs of suitors I think the
rule should receive as liberal a construction as possible.”

There are of course some limits which have been established
to the exercise of the discretion under the Rules. In Russian
Commercial and Industrial Bank v. British Bank for Foreign Trade
Ltd. [1921] 2 A.C. 438, 448, Lord Dunedin said with reference to
the ancient Scottish action of declarator:

“The rules that have been elucidated by a long course of
decisions in the Scottish courts may be summarized thus:
The question must be a real and not a theoretical question;
the person raising it must have a real interest to raise it;
he must be able to secure a proper contradictor, that is to
say, someone presently existing who has a true interest to
oppose the declaration sought.”

Subsequently, in Vine v. National Dock Labour Board [1957] A.C.
488, 500, Viscount Kilmuir L.C. found this Scottish approach to be
helpful; and indeed there is authority in the English cases that a
declaration will not be granted where the question under
consideration is not a real question, nor where the person seeking
the declaration has no real interest in it, nor where the
declaration is sought without proper argument, e.g. in default of
defence or on admissions or by consent. In the present case,
however, none of these objections exists. Here the declaration
sought does indeed raise a real question; it is far from being
hypothetical or academic. The plaintiff has a proper interest in
the outcome, so that it can properly be said that she is seeking
relief in the broad sense described by Bankes L.J. The matter has
been fully argued in court, through the intervention of the Official
Solicitor, and indeed with the benefit of assistance from an amicus
curiae. I wish to add that no question arises in the present case
regarding future rights: the declaration asked relates to the
plaintiff’s position as matters stand at present. In all the
circumstances, I can see no procedural difficulty in the way of
granting a declaration in the present case. In truth, the objection
of the members of the Court of Appeal to the declaratory remedy
was that it was not so appropriate as the exercise by the court of
the parens patriae jurisdiction, had that still been available, by
which the court would have considered whether or not to grant
approval to the proposed treatment. This is a justifiable comment,
in that (statute apart) only the exercise of the parens patriae
jurisdiction can ensure, as a matter of law, that the approval of
the court is sought before the proposed treatment is given. If,
however, it became the invariable practice of the medical

– 32 –

profession not to sterilise an adult woman who is incapacitated
from giving her consent unless a declaration that the proposed
course of action is lawful is first sought from the court, I can see
little, if any, practical difference between seeking the court’s
approval under the parens patriae jurisdiction and seeking a
declaration as to the lawfulness of the operation.

I am satisfied that, for the reasons so clearly expressed by
the judge, he was right to grant the declaration sought by the
plaintiff in the present case. I would therefore dismiss the appeal.
My noble and learned friend, Lord Brandon of Oakbrook, has
proposed that certain alterations should be made to the declaration
made by the judge. I for my part understood that the declaration
was made on the basis of existing circumstances; but I am very
content that this should be made clear in the order, and that
express provision should be made for a liberty to apply, as
proposed by my noble and learned friend.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

The difficult questions raised in this appeal have been fully
examined in the speeches of my noble and learned friends Lord
Brandon of Oakbrook and Lord Goff of Chieveley and I entirely
agree with their conclusions as to the manner in which this appeal
should be disposed of and with their reasons for such disposal.

My Lords, I should like only to reiterate the importance of
not erecting such legal barriers against the provision of medical
treatment for incompetents that they are deprived of treatment
which competent persons could reasonably expect to receive in
similar circumstances. The law must not convert incompetents
into second class citizens for the purposes of health care.

There are four stages in the treatment of a patient,
whether competent or incompetent. The first is to diagnose the
relevant condition. The second is to determine whether the
condition merits treatment. The third is to determine what the
merited treatment should be. The fourth is to carry out the
chosen form of merited treatment. In the case of a long term
incompetent, convenience to those charged with his care should
never be a justification for the decision to treat. However, if
such persons take the decision in relation to the second and third
stages (supra) solely in his best interests and if their approach to
and execution of all four stages is such as would be adopted by a
responsible body of medical opinion skilled in the particular field
of diagnosis and treatment concerned, they will have done all that
is required of them and their actings will not be subject to
challenge as being unlawful.

– 33 –

4.5.89

HOUSE OF LORDS

IN RE F.
(RESPONDENT)

Lord Bridge
of Harwich
Lord Brandon
of Oakbrook
Lord Griffiths
Lord Goff
of Chieveley
Lord Jauncey
of Tullichettle

LORD BRIDGE OF HARWICH

My Lords,

I understand that your Lordships all agree on the appropriate
disposal of this appeal although not yet ready to state your
reasons. In the circumstances it is obviously desirable that the
appeal should now be determined for reasons to be given later. I
accordingly propose that the appeal be dismissed but that there be
substituted for the order and declaration made by Scott-Baker J.
an Order in the following terms:

1. 1. It is declared that the operation of sterilisation
    proposed to be performed on the plaintiff being in the
    existing circumstances in her best interests can
    lawfully be performed on her despite her inability to
    consent to it;
  2. It is ordered 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.