LAW REPORT : Court allowed to consider patient's care

Re S Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Kennedy and Lord Justice Millett).

2 March 1995.

The court would not impose inflexible tests to determine the legal standing of a person claiming declaratory relief in a case involving a serious justiciable issue as to the care of a patient rendered inarticulate by sudden illness.

The Court of Appeal dismissed an appeal by S's wife and son from Mrs Justice Hale's decision [1995] 2 WLR 38 that the plaintiff, S's close friend, could invoke the court's jurisdiction to grant declaratory relief relating to the care of S who had suffered a stroke.

S and his wife, Norwegian citizens, married in 1945. Their son was born in 1947. S met the plaintiff in 1989. They became close and set up house together in England in 1991. S suffered a stroke in 1993. The plaintiff secured his admission to a private hospital and made payment under a power of attorney entitling her to operate S's bank accounts.

In September 1994 the son attempted to move S to Norway by a private aircraft. The plaintiff obtained an interlocutory injunction restraining S's wife and son from removing S from the hospital. The issue raised was whether the court had jurisdiction, on the plaintiff's application in private law proceedings, to grant declaratory relief relating to S's care and thereby jurisdiction to grant an injunction pending a final hearing.

Sir Louis Blom-Cooper QC and Witold Pawlak (Lewis Silkin for Billson Sharp, Leicester) for S's wife and son; James Munby QC and Huw Lloyd (Payne Hicks Beach) for the plaintiff; Robert Francis QC and Nicholas O'Brien (Official Solicitor) for the Official Solicitor as S's guardian ad litem.

SIR THOMAS BINGHAM MR said that the law respected the right of adults of sound mind to physical autonomy. That rule could not be applied to minors and those subject to serious mental illness. "Patients", such as S, rendered unconscious or inarticulate by sudden illness could not express preferences like rational, conscious adults.The courts had treated as justiciable any genuine question as to what the best interest of a patient required or justified.

It could not be suggested that any stranger or officious busybody, however remotely connected with a patient, could properly seek or obtain declaratory or other relief.

But it could be suggested that where a serious justiciable issue was brought before the court by a party with a genuine and legitimate interest in obtaining a decision against an adverse party, the court would not impose nice tests to determine the precise legal standing of that claimant. The substantial issue here, relating to S's care, was a serious justiciable issue, involving the happiness and welfare of a helpless human being.

When S suffered his stroke it was plain that the plaintiff assumed the duty of ensuring that he was properly cared for. Having assumed that duty, she was at risk if she failed to discharge it. She did discharge it.

Although the wife and son had ties of affinity and blood with S which the plaintiff lacked, those ties conferred no legal right to determine the course of S's treatment.

If it was necessary for the plaintiff to demonstrate in herself a specific legal right which was liable to be infringed by the proposed action of the wife and son, then the plaintiff did so.

To insist on demonstration of a specific legal right in this sensitive and socially important area of the law was to confine the inherent jurisdiction of the court within an inappropriate straitjacket. The plaintiff was far from being a stranger or a busybody, and that was enough to give the court jurisdiction.

Neither the Official Solicitor nor the hospital management could have been expected to act in time to prevent the removal of S. If the law were powerless to give help in such cases, the invitation to others similarly placed to take the law into their own hands, with the risk of unseemly tussles and at worst violence, would be obvious. This was pre-eminently an area in which the common law should respond to social needs as they were manifested, case by case. The appeal would be dismissed.

LORD JUSTICE MILLETT gave a concurring judgment and LORD JUSTICE KENNEDY agreed.

Ying Hui Tan, Barrister