Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290

C, who had paranoid schizophrenia, was a patient at Broadmoor Hospital. He had a gangrenous leg and the surgeon was of the view that if it was not amputated he was likely to die. C sought an injunction to prevent the hospital from operating without his consent, saying that he would rather die with two feet than live with one. The judge in the Family Division of the High Court, Thorpe J, said:

This case was decided 11 years before the Mental Capacity Act and itself relied on earlier judgments. Although it was heard in the High Court, the test of capacity in the case was approved in a later case in the Court of Appeal ( Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426). Although the Act retains the framework of an assumption of capacity until proved otherwise, with an analysis of the steps in decision-making, the second step (of believing the treatment information) has not been retained (neither was it retained as a separate explicit step in Re MB). However, until the Act came into force, the analysis set out in this case and in Re MB provided the definitive legal test of capacity to make medical treatment decisions.

As cases on capacity are usually heard in the civil courts, the civil standard of proof applies, that is ‘on the balance of probabilities’, rather than the higher criminal standard of ‘beyond reasonable doubt’.

Re T (Adult: Refusal of Treatment) [1993] Fam 95 (CA)

Miss T was not herself a Jehovah’s Witness, but had been brought up until the age of 18 by her mother, who was one. She was 34 weeks pregnant, was injured in a road accident and had developed pneumonia. There was a need for Caesarean section. After a visit from her mother and having been given pethidine for pain, she signed forms consenting to the operation but refused consent to a blood transfusion. The baby was stillborn and Miss T had to be transferred to the intensive therapy unit with a lung abscess, too ill to give further consent. Her father sought a declaration that it would be lawful to give her a blood transfusion. An urgent decision of the High Court accepted her initial consent as valid, but found that it could not be established that her initial refusal of transfusion had been properly informed (since she had not been informed that she might die without it), neither was it clear that it extended to the new serious situation. So, the court held that she could be given a transfusion in her best interests and this was upheld in the Court of Appeal.

This judgment is remarkable for the clarity with which the judge argues the case, but also the urgency under which the decision had to be made. One of the hearings took place at the judge’s lodgings at 23:30 h, with the judge taking evidence from the doctor by telephone as the clinical situation unfolded. Two days later, the patient had become much more seriously ill and it was clear that she was likely to die unless the court issued a declaration that her previous refusal of blood transfusions was no longer valid. Lord Donaldson’s judgment conveys the difficulty that he had struggling to put the complex issues of evidence and legal principle together (‘I confess to having agonised all night to reach my conclusions’). One of the doctors involved made his job more difficult by changing his evidence between the late-night phone call and the full hearing 2 days later. Despite the judge’s implied criticism of the mother, who, ‘although a party to the proceedings, has never seen fit to give evidence’, he avoids taking the route of arguing that Miss T’s refusal was invalid because it was given under the influence of her mother. He instead devotes more than two pages to a detailed analysis of the evidence, explaining why he finds some parts more persuasive than others, concluding that although her initial refusal was valid, it did not cover the emergency ‘which was outside her contemplation and the contemplation of others at the time she expressed her opposition to a blood transfusion’. One is perhaps rarely so caught up in the human interest of a case, argued so clearly yet so compassionately.

Chester v Afshar [2004] UKHL 41

Courts have increasingly recognised the importance of autonomy, the right of patients to choose whether or not to accept treatment. Ms Chester consulted a surgeon, Mr Afshar, about her painful back. He recommended surgery but failed to warn her of the small risk of nerve damage. She agreed to the surgery, but the damage materialised and she was partially paralysed. She sued him, not for any technical shortcoming in the surgery, but for having failed to warn her of the risk. She argued that if he had told her, she would have sought a second opinion. Although in all likelihood she would have accepted the operation, it would have taken place at a later time and the risk might not have materialised on that occasion. By a majority, the House of Lords found in her favour. At first, this seems a perplexing judgment, possibly contrary to many people’s sense of natural justice, as Ms Chester admitted that she would have accepted the operation in any case. However, commentators have explained that an effect of the judgment is to underline the great importance that courts attach to providing information to patients to enable them to make informed decisions.

Banks v Goodfellow (1869–70) LR 5 QB 549

John Banks had made a will in favour of his niece, but it was contested by the son of his half-brother, another John Banks, on the grounds that he had at times been confined with insane delusions that he was personally molested by a man long dead and was pursued by evil spirits. In a famous judgment that still defines the legal test of testamentary capacity, the judge, Cockburn CJ, found that even though the testator had experienced these delusions, they had not interfered with his ability to make a valid will, a power that he described as follows:

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, [1957] 2 All ER 118

Mr Bolam required electroconvulsive therapy for depression, a treatment that carried a risk of bone fracture. At that time, some experts believed that it was better to give muscle relaxants to reduce the risk of fracture, some thought that it was better to restrain the patient using a sheet or similar device, and some felt that as little restraint as possible should be used. Mr Bolam was minimally restrained but sustained a fracture. He brought an action against the hospital for failing to restrain him and failing to warn him of the risk. McNair J held that the Court should ask whether the doctor was acting ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’. In this case, the expert evidence showed that he was, so it did not matter that other doctors would have acted differently. The ‘Bolam test’ has been much criticised for setting such a low threshold for adequate medical practice that it is almost impossible to show that a doctor has fallen short of it.

Although later cases have slightly diluted the judgment (for example, in accepting that some expert opinion, although established practice, may yet be so unreasonable as to defy logical analysis), this test remains a key test in determining a doctor’s liability in negligence cases, as well as in many other areas of law, including non-medical ones. In terms of the information required to be given to patients, courts in the UK have avoided adopting the US test of what a prudent patient might expect to be told, in favour of asking what a competent doctor might consider that a patient should be told. In practice, professional codes of practice such as those from the General Medical Council and the British Medical Association are much more likely to inform medical practice in consent than standards enforced by the courts.

This case has two citations because it was published in two different series of law reports: Weekly Law Reports (WLR) and All England Law Reports (All ER).

The Bournewood case

This case started in the High Court (Queen’s Bench Division) as an action for habeas corpus and judicial review ( R v Bournewood Community and Mental Health NHS Trust Ex p L (1997) QB unreported), was then heard in the Court of Appeal ([1998] 2 WLR 764), then in the House of Lords ([1998] 3 All ER 289), and then went to the European Court ( HL v UK [2004] ECHR 45508/99).

HL was a man in his 40s with autism living with a foster family in the community. He was taken to a learning disability hospital after his behaviour became out of hand at a day centre. Even though he quickly calmed down, the hospital was so reluctant to allow him to return to his foster family that the family brought an action against the hospital for unlawful deprivation of liberty (an action of habeas corpus). The House of Lords found in favour of the hospital, saying that in English law HL had not been unlawfully deprived of his liberty, even though there was no formal legal process of detention (such as use of the Mental Health Act). However, the European Court of Human Rights found that his human rights had been breached and he had been unlawfully deprived of his liberty (Article 5 of the European Convention guarantees that ‘No one shall be deprived of his liberty save […] in accordance with a procedure prescribed by law’). Following this case, the law of England and Wales was declared to be incompatible with European law and was altered to provide a formal process for authorising and reviewing deprivation of liberty. This was why the Deprivation of Liberty Safeguards (DoLS) procedures, which form Schedules A1 and 1A of the Mental Capacity Act 2005, were introduced.

B v Croydon Health Authority [1995] 1 All ER 683

For patients detained under the Mental Health Act, the question often arises as to what are the limits of treatments that can be given under the Act without the consent of the patient. The Act itself is very open-ended on this. Section 63 says:

The leading case on this is B v Croydon Health Authority. Ms B had a borderline personality disorder coupled with post-traumatic stress disorder. While detained under section 3 of the Mental Health Act, she stopped eating and her weight became dangerously low. She sought an injunction to prevent the hospital from force-feeding her. The case was heard in the Court of Appeal, where Hoffmann LJ found that medical treatment as defined in section 145 must be considered as a whole, and ‘a range of acts ancillary to the core treatment fall within the definition […] Nursing and care concurrent with the core treatment or as a necessary prerequisite to such treatment or to prevent the patient from causing harm to himself or to alleviate the consequences of the disorder are, in my view, all capable of being ancillary’ [to the core treatment] and, therefore, permitted medical treatment. This case was applied in Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762 to authorise a Caesarean section in a pregnant woman with schizophrenia who had the delusional belief that the doctors caring for her wanted to harm the baby.