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

F, a 36-year-old woman with severe mental disability, was a voluntary hospital patient who formed a sexual relationship with a male patient. Due to her inability to consent to or cope with pregnancy, the court was asked whether sterilisation could lawfully be performed without her consent. The House of Lords held that treatment in the best interests of an incapacitated adult is lawful under the principle of necessity.

Facts

F was a 36-year-old woman who had been a voluntary in-patient at a mental hospital since 1967. She suffered from serious mental disability, having the verbal capacity of a child of two and general mental capacity of a child aged four to five. F had formed a sexual relationship with a male patient, P, which was voluntary on her part. Medical evidence established that F could not cope with pregnancy, labour, delivery, or caring for a child, and that pregnancy would be psychiatrically disastrous for her. Conventional contraception methods were unsuitable due to various risks. It was proposed that F be sterilised by ligation of her Fallopian tubes.

Procedural History

F, through her mother as next friend, applied for a declaration that sterilisation would not be unlawful despite her inability to consent. Scott Baker J granted the declaration. The Official Solicitor appealed to the Court of Appeal, which dismissed the appeal. The Official Solicitor appealed to the House of Lords.

Issues

1. Whether court involvement was necessary or desirable before sterilising a mentally incapacitated adult who cannot consent.

2. What jurisdiction, if any, the court has to deal with such matters.

3. What procedure should be used for invoking court involvement.

4. Whether the operation of sterilisation on F was lawful despite her inability to consent.

Judgment

The House of Lords unanimously dismissed the appeal, holding that the proposed sterilisation was lawful.

Parens Patriae Jurisdiction

Their Lordships confirmed that the parens patriae jurisdiction over persons of unsound mind had ceased to exist following the Mental Health Act 1959 and the revocation of the relevant Royal Warrant on 1 November 1960. Part VII of the Mental Health Act 1983 did not confer jurisdiction to decide questions of medical treatment.

Principle of Necessity

Lord Goff explained that medical treatment given without consent to those incapable of consenting is justified by the common law principle of necessity. This principle applies where there is a necessity to act when it is not practicable to communicate with the assisted person, and the action taken must be such as a reasonable person would take in the best interests of the assisted person.

Best Interests Standard

Treatment is lawful if carried out in the best interests of the patient. The standard to be applied is that set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 – that the doctor acted in accordance with a practice accepted by a responsible body of medical opinion.

Court Involvement

Although court involvement is not strictly necessary as a matter of law, it is highly desirable as a matter of good practice for sterilisation operations, given their irreversible nature and the deprivation of fundamental reproductive rights. The appropriate procedure is an application for a declaration that the proposed operation is lawful.

Procedure

Lord Brandon set out directions for future cases: applications should be by originating summons in the Family Division; the applicant should normally be those responsible for the patient’s care; the patient must be a party with the Official Solicitor as guardian ad litem; hearings should normally be in chambers with judgment in open court.

Implications

This case established the legal framework for medical treatment of adults who lack capacity to consent. It confirmed that the principle of necessity justifies treatment in the best interests of incapacitated patients. The decision emphasised that while prior court approval is not legally required for treatment, it is highly desirable for serious irreversible procedures such as sterilisation. The case highlighted a gap in the law following the removal of the parens patriae jurisdiction, which their Lordships suggested was a matter for Parliament to address. The Bolam test applies to determine whether treatment is in the patient’s best interests.

Verdict: Appeal dismissed. The House of Lords declared that the proposed sterilisation operation, being in F's best interests in the existing circumstances, could lawfully be performed despite her inability to consent. The order was varied to include liberty to apply if material circumstances changed before the operation was performed.

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