Could the High Court order you to have an operation?
Barrister of the Year Barbara Hewson thinks that some judges are failing to respect patients' autonomy
Anybody concerned about civil liberties in the UK should pay close attention to the growing use of the Family Division of the High Court by NHS Trusts and other public authorities, to sanction non-consensual medical treatment of adults and children. The facts of many reported cases are disturbing. The outcomes suggest that courts too often fail to protect individuals from unwarranted invasions of fundamental rights.
There have been some bizarre rulings on medical treatment by the Family Division. In a case called Y (Mental Patient) (1997) a judge decided that Y should undergo blood tests (including 'lending' a pint of blood) and a 'conventional bone-marrow harvesting operation' under general anaesthetic, at the request of her sister who had leukaemia. A possible unrelated donor had been found, but sibling transplants were more likely to succeed. Y was severely mentally and physically handicapped, could hardly speak and suffered regular fits. Y enjoyed occasional visits from her sisters and weekly visits from her mother; she liked her mother's visits, but could not appreciate who she was. Y was represented by the Official Solicitor (who normally acts for people who are not competent to instruct lawyers; for example, young children, coma victims, etc). The proposed operations were of no physical benefit to Y. The judge decided that it was in Y's 'best interests' to undergo these procedures for her sister; their mother was ill and if the sister died, the mother would probably not have as much time to visit Y.
CH v Tameside & Glossop AHA (1996) is another. In July 1995 CH, a paranoid schizophrenic, was detained for treatment under the Mental Health Act 1983. CH was then found to be pregnant. Anti-psychotic medication for her schizophrenia was withheld. She was put on mild tranquillisers. CH was concerned about their effect on the fetus, but was described as 'apt to resist treatment'. Later the hospital decided that the baby was 'small for dates' and wanted to induce labour on 7 January 1996. CH agreed. The Health Authority applied to the court for permission to impose a caesarean, using restraint if need be, in case CH changed her mind. A psychiatrist said if force were used on CH this would have a negative effect in the short term, but later she would appreciate that it was in her 'best interests'. The Official Solicitor and the hospital agreed that CH lacked capacity. The Official Solicitor asked the court to authorise a caesarean (with force) under section 63 of the Mental Health Act, as opposed to common law. Section 63 only allows compulsory medical treatment of mental disorder, provided it is given at or under the direction of the responsible medical officer. The judge ruled that a caesarean (with force) was treatment for the woman's paranoid schizophrenia under section 63.
Between 1992 and 1996, in other cases of court-ordered caesareans, family courts effectively ceased acting judicially, instead acting as though they were an arm of the executive. NHS hospitals used the courts to authorise non-consensual obstetric intervention, without ensuring that the women had legal representation. Such applications were made ex parte (that is, one side only) and decided in a matter of minutes (sometimes by telephone). The judges were not troubled by such elementary breaches of natural justice, and made orders for the detention and forced treatment of these women, usually without any evidence, and once without even knowing the woman's name. One judge claimed to have made three orders in a fortnight. Sometimes the judges said that the women lacked capacity to decide for themselves, or ruled that the court could override their competent decisions. Two cases concerned so-called 'needle phobia'. In one case, the judge authorised the use of force to impose a non-consensual forceps delivery.
In some cases the Official Solicitor appeared by a QC as an amicus curiae (that is, friend of the court). In the first, S (1992), which set the precedent for the others, he said: '[T]he difficulty is that the English law does not recognise yet the personality of the unborn child...On the view that the child is not yet a person...we cannot be here representing it as guardian, so I am simply here as an amicus, doing my best in desperate circumstances, perhaps to nudge your lordship in a particular direction...'
What has gone wrong? Common law prohibits any non-consensual touching (however slight). Here is the Court of Appeal in a wrongful arrest case, Collins v Willcock (1984):
'The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery...The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, seventeenth edition (1830), vol 3, p120: "the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." The effect is that everybody is protected not only against physical injury but against any form of physical molestation.'
Students of political thought may detect echoes of John Locke ('every man has a property in his own person') and John Stuart Mill ('Over himself, over his own body and mind, the individual is sovereign').
All adults (even those detained in mental hospitals) are presumed to have capacity (or competence) to make decisions about their medical treatment. The legal definition of capacity is: a person can comprehend and retain the information material to the decision, especially as to the likely consequences of having or not having the treatment in question; and can use the information and weigh it in the balance as part of the process of arriving at the decision. A person with capacity can refuse treatment for reasons that are rational or irrational, or for no reason.
Lord Reid gave a salutary warning about courts interfering with adults' autonomy in a paternity dispute (after a lower court tried to make a man have a blood test), S v S (1972):
'There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will...English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d'état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.'
That did not stop the ingenuity of lawyers. In 1993 a local authority attempted to make a fetus a ward of court, in order to arrest a pregnant woman, detain her in hospital, and take the baby into care once born. The Court of Appeal refused, saying that judges have no jurisdiction to interfere with pregnant women's civil liberties like this.
In Re F (1990) the House of Lords was asked to authorise the sterilisation of an adult woman with severe mental impairment (the verbal capacity of a two-year old and the mental age of a four to five-year old). Lord Brandon explained when consent is not required by law:
'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...a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable...provided that the operation or other treatment concerned is in the best interests of such patients.'
In the Bland case (1993) the House of Lords was asked to authorise the withdrawal of food and hydration from a patient in a permanent vegetative state, and let him die. Lord Goff reiterated that where patients have capacity, their views are final:
'The principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so...To this extent, the principle of the sanctity of human life must yield to the principle of self-determination...I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so.'
But withdrawal of life support was lawful, provided that it was in an unconscious patient's 'best interests'.
Bland and Re F stated that it was 'good practice' for doctors seeking to sterilise the mentally disabled, or to withdraw life support from coma victims, to apply to the Family Division. This was to allay public concern over euthanasia and eugenics. The idea was that the court would provide some independent review of the doctors' decision. There was no dispute about patients' capacity: they had none. There was no question of using 'restraint'. The problem with such cases is that they engender an expectation on the part of doctors and lawyers that leave will be forthcoming from the courts.
The legal position with children (persons under 18) is somewhat different. A 1969 Act gives 16 to 17-year olds the right to consent to medical treatment. Under 16, a child has no equivalent right. But the House of Lords ruled in Gillick (1986), that if a person under 16 is capable of understanding what is proposed, and of expressing her own wishes, she can give a valid consent. In 1991-2, the family courts rebelled against Gillick, claiming a parens patriae jurisdiction over children (that is, the state acting as parent). This meant that a judge could veto a competent child's decision to refuse treatment, if treatment was in the child's 'best interests'. So, in theory, you could agree to go on the Pill aged 15; but a judge might force you to have an abortion if the Pill didn't work! If a minor physically resists the court can authorise force ('restraint') to impose treatment. The idea of court-ordered violence is profoundly disturbing and to my mind undermines the dignity of all concerned.
Another way of imposing non-consensual treatment is for the hospital authority to claim that a person lacks capacity. In some cases involving anorexics the court has found that they can be force-fed, even compulsorily detained in a clinic, on the basis that anorexia has so clouded the individual's decision-making powers that she is incapable of making a decision at all. Such paternalism in the family courts has led to a curious catch-22: you can only give a valid consent if you agree with your doctors. If you disagree, you must be incompetent.
What now? Following a recent Court of Appeal decision, MS (1998), it is clear that courts cannot force competent pregnant women to undergo medical treatment against their will, and that the Mental Health Act 1983 cannot be used to detain people suffering from physical disorders. The Court of Appeal said that ex parte orders are not legally binding on victims of court-ordered treatment, who can sue for assault. But the court laid down guidelines for the conduct of cases where a patient's (any patient's) capacity is challenged by a medical authority. While patients are supposed to be represented, some trusts still want to rush them into court. I suspect that some judges and public authorities have a lot to learn about the right to a fair trial in such cases.
Barbara Hewson practises as a barrister at Littman Chambers, Gray's Inn. She received the first Lawyer/HIFAL Barrister of the Year award in June, for her work on the forced caesarean issue
Reproduced from LM issue 115, November 1998