F v West Berkshire HA

Factual and Procedural Background

An adult woman (“Respondent”) has a severe and permanent mental impairment dating from infancy. She is a long-term voluntary in-patient at “The Hospital” where she has formed a consensual sexual relationship with a male patient. Medical evidence showed that pregnancy would be psychologically disastrous for her and that conventional contraception was unsuitable or dangerous. Doctors therefore proposed a permanent sterilisation by tubal ligation.

On 20 June 1988 an originating summons was issued in the Family Division seeking either: (i) a declaration that the operation would be lawful despite the Respondent’s inability to consent, or (ii) the court’s consent under whatever jurisdiction might exist. Judge Scott Baker granted the declaration on 2 December 1988.

The “Official Solicitor” (“Appellant”) obtained leave to appeal, contending that the declaration should not have been made. On 3 February 1989 the Court of Appeal dismissed that appeal but certified a further appeal to the House of Lords. The Mental Health Act Commission intervened. After extensive argument the House of Lords (i) dismissed the appeal, (ii) set aside the Court of Appeal’s order as to form, and (iii) substituted a revised declaration and liberty-to-apply clause.

Legal Issues Presented

1. Whether any court still possesses jurisdiction—statutory, parens patriae or inherent—to authorise or refuse medical treatment for an adult lacking capacity.
2. Whether, in the absence of such jurisdiction, common-law principles permit doctors to perform non-therapeutic sterilisation on an incapacitated adult.
3. What procedural mechanism (approval, declaration, or other) should be used when such treatment is proposed.
4. What substantive standard (necessity, best interests, or stricter test) governs the lawfulness of treatment administered without consent.

Arguments of the Parties

Appellant's Arguments

• No court could lawfully authorise sterilisation because the historic parens patriae jurisdiction over adults ended in 1960 and was not recreated by statute.
• Part VII of the Mental Health Act 1983 (“management of property & affairs”) did not extend to medical treatment.
• Absent jurisdiction, non-therapeutic sterilisation violated the Respondent’s fundamental right to reproductive autonomy and amounted to a trespass.
• If the operation were nevertheless to proceed, prior judicial approval—not a mere declaration—was essential to protect the Respondent.

Respondent’s and Company A’s Arguments

• The operation was clearly in the Respondent’s best interests and therefore lawful under the common-law doctrine of necessity.
• A declaration of lawfulness was an appropriate and sufficient safeguard; no further jurisdiction was required.
• As doctors owed a duty of care, refusing the operation would itself risk legal liability.

Table of Precedents Cited

Court's Reasoning and Analysis

No surviving jurisdiction to give consent. The House confirmed that after the 1960 revocation of the Sign Manual Warrant there is no parens patriae jurisdiction over adults; neither Part VII of the Mental Health Act 1983 nor procedural rules could create one.

Common-law necessity and best interests. Drawing on historic “necessity” cases, the majority held that doctors may lawfully treat incapacitated adults if, and only if, the treatment is in the patient’s best interests and accords with responsible medical practice (Bolam standard). Necessity, not emergency alone, supplies the lawful excuse.

Sterilisation requires special caution. Although the same legal test applies, irreversible loss of fertility, moral sensitivities and potential for abuse justify compulsory recourse to the court as a matter of good practice whenever sterilisation is proposed.

Appropriate procedure. The Court of Appeal’s suggestion of a new “approval” jurisdiction was ultra vires. The correct mechanism is an originating summons in the Family Division seeking a declaration of lawfulness. Pending formal rules, the House endorsed directions (adapted from Judge Donaldson’s draft) requiring: (i) application by carers or surgeons; (ii) representation of the patient, normally by the Official Solicitor; and (iii) liberty to apply if circumstances change.

Standard for future cases. The majority rejected replacing the Bolam test with a heightened necessity test. They emphasised parity: incapacitated adults must not be deprived of beneficial treatment that a competent patient would receive.

Holding and Implications

HOLDING: Appeal dismissed; the Court of Appeal’s order was set aside in form but a revised declaration was granted stating that the proposed sterilisation “being in the existing circumstances in the Respondent’s best interests can lawfully be performed despite her inability to consent,” with liberty to apply if circumstances change.

Implications: The decision clarifies that: (1) doctors treating incapacitated adults rely on common-law necessity judged by the Bolam standard; (2) no court may “give consent,” but a declaration of lawfulness should be sought for irreversible, non-therapeutic procedures such as sterilisation; (3) future applications must follow the Family Division declaration procedure with independent representation. The ruling sets no new precedent beyond England and Wales but establishes a practical safeguard for vulnerable adults.