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Report No. 196

8. In re F (Mental Patient: Sterilisation): 1990(2) AC 1.

Here the patient was not a minor, hence parens patriae jurisdiction was not available, but even so, applying the inherent power doctrine, the same test, namely, the test of "best interests of the patient" was applied by Lord Brandon of Oakbrook (at p.64).

Here the woman was 36 years old, was mentally handicapped and unable to consent to an operation. She became pregnant. The hospital staff considered that she would be unable to cope with the effects of pregnancy and giving birth to a child and that, since all other forms of contraception were unsuitable and it was considered undesirable to further her limited freedom of movement in order to prevent sexual activity, it would be in her best interests to be sterilised. Her mother who was of the same view moved the Court for a declaration that such operation would not amount to an unlawful act by reason of the absence of her consent. The trial Judge and the Court of Appeal accepted that the lady be sterilised.

On appeal, the House of Lords affirmed the decision. It referred to Bolam vs. Freirn Hospital Management Committee 1957(1) WLR 582 and In re B (A minor)(Wardship: Sterilisation): 1988 A.C 199. It said that it was open to the Court under its 'inherent' jurisdiction to make a declaration that a proposed operation was in the patient's best interests, where the patient was an adult but unable to give informed consent, where the purpose was to prevent the risk of her becoming pregnant.

Though parens patriae jurisdiction was abolished in England by statute in the case of mentally ill patients, the trial Judge and the Court of Appeal held that the Court could give consent under inherent jurisdiction.

The House of Lords held that though the parens patriae jurisdiction was not available because it was abolished in the case of mentally-ill patients by statute, the Court still had inherent jurisdiction to grant a declaration that sterilization of F in the circumstances of the case, would not be unlawful if it was in the best interests of the patient.

Though there was no need to obtain a declaration in as much as doctors could perform the surgery on the ground that it was in the best interests of such a patient, but in practice the Court's jurisdiction should be invoked whenever it was proposed to perform such an operation, 'since a declaration would establish, by judicial process whether the proposed operation was in the best interests of the patient and therefore lawful'.

In determining whether the proposed operation was in the best interests of the patient, the Court could apply the established test of what would be accepted as appropriate treatment at the time by a reasonable body of medical opinion skilled in the particular form of treatment.

At common law, a doctor can lawfully operate on or give other treatment to adult patients who are incapable of consenting to his doing so, provided that the operation is in the best interests of such patients. The operation or treatment will be in their best interests 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. (Lord Griffith dissented)

Among the cases considered are Bolam 1957 (2) All ER 118; Re D (a minor)(wardship: sterilization): (1976)(1) All ER 326; Re Eve (1986) 31 DLR (4 th) 1 (Canadian Supreme Court)Re Grady (1981) 85 NJ 235 (NJ SC); Re Jane (1988) (Australian Family Court), Marshall vs. Curry (1933) 3 DLR 260 (NS SC); Murray vs. McCarthy: 1949(2) (DLR 422 (BC, SC); Schlocndorf vs. Society of New York Hospital (1914) 211 NY 123 (NY Ct of Apps): & other cases of English Courts. The main judgment is by Lord Brandon of Oakbrook and Lord Goff of Chieveley. (The judgment of the Court of Appeal was rendered by Lord Donaldson of Lymington MR, Neill & Butter-Sloss LJJ).

Three cases where the Court granted permission for sterilisation of mentally incompetent persons who could not give consent were referred to: Re T (14 th May 1987, unrep) Per Latey J; Re X (1987, Times, 4 th June, per Reeve J) and T vs. T: 1988 (1) All ER 613 (Wood J).

The House of Lords referred to Cardozo J in Schloendorff vs. Society of New York Hospitals (1914) 211 NY 123 (126) to the following effect (in respect of a competent patient):

"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 his patient's consent commits assault."

This was reiterated by Lord Reid in S vs S, W vs. Official Solicitor (1970) (3) ALL ER 107 (HL).

In Re Grady (1981) 85 NJ 235 (US) and in Re Jane (22 nd Dec 1988) (Australia, Nicholson CJ) it was observed that it is of importance that the patient.- (there a minor.- must be represented by some disinterested third party.

Lord Hailsham LC, dissented from the view of La Forest J in Re Eve (1986) 31 DLR1 (4 th ) page (though, on facts that decision may be correct)) where it was held that (p 32) that sterilization 'should never be authorized for non-therapeutic purposes' and described it as unconvincing and in startling and contrary to the welfare principle which should be the first and paramount consideration in wardship cases.

Lord Templeman, however, stated that in such cases the concerned persons must approach the High Court and if sterilization is done without consent of Court, the doctors will be liable for criminal, civil or professional proceedings, notwithstanding that the doctor had the consent of the child's parents.

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