Whose Best Interests?

’Infant’ was the old legal term for anyone under the age of 21 years. The Family Law Reform Act 1969 reduced the age of majority — that is, legal competency — to 18 years, and in section 12 authorized the use of the word ‘minor’ as a substitute for ‘infant’. The term ‘child’ in the Children Act 1989 means a person under the age of 18 years

per La Forest J. in Re Eve [1986] 2 SCR 388: 115 DLR (3d) 283; Re B (a Minor) (Wardship: Sterilisation) [1988] AC 199. (And see Article 3 of the UN Convention on the Rights of the Child)

See Kennedy & Grubb, Medical Law. 2nd ed. Butterworths. 1994

For an American criticism of the ‘best interests’ test and its various definitions, see Mental Health and Minority Religions: the Latest Weapon in Custody Battles, by Carolyn Wah. Int J Law Psychiatry 1994; 17: 331–345

In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 55E

Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582

See In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 52C-F, 68C and 78B, and Stone J. Law Commission's Proposals on Mental Incapacity. Clinical Risk 1996; 2: 10–12

See the Law Commission's report on Mental Incapacity (Law Comm. No. 321), pages 42 & 43, paras. 3.26 & 3.27. It has been remarked that Official Solicitor's Practice Note on sterilisation is an extra-judicial attempt to define the elements of the ‘Best Interests’ test

See, for example, para. 9 of the Official Solicitor's Practice Note on PVS cases, reported at [1994] 1 FLR 654

Technically, it would be a battery, because an assault in civil law is putting someone in fear of bodily violence. Psychological treatments may not constitute either an assault or a battery, and nor may other forms of treatment, for example, where the patient takes prescribed drugs. However, implementing such treatment without consent would constitute a breach of duty or of a code of practice such as that prepared under section 118 of the Mental Health Act 1983

Re J (a Minor) (Wardship: Medical Treatment) [1991] Fam. 33; Re J (a Minor) (Wardship: Medical Treatment) [1993] Fam. 15; Re R (A Minor) (Wardship: Medical Treatment) [1992] 1 FLR 190

Re C (Refusal of Medical Treatment) [1994] 1 FLR 31

See In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 13G and 76H

The former concepts of rights of custody, custodial rights or parental rights were replaced by ‘parental responsibility’ in section 3 of the Children Act 1989. Parental responsibility includes all the rights, powers, responsibilities and authority which by law a parent of a child previously had in relation to the child and his property, including those of a guardian of the child's estate

Per Lord Scarman in Gillick v. West Norfolk AHA [1986] AC 112

Those with parental responsibility include both married parents, a father who is not married to the mother but who has acquired parental responsibility by agreement with the mother or by an order of the court, guardians, those with a residence order in their favour and a local authority with a care order

See, for example, Taylor LJ in Re J (a Minor) (Wardship: Medical Treatment) [1991] Fam. 33 and Re B (a Minor) (Wardship: Sterilisation) [1988] AC 199 at 202

Re S (a Minor) (Medical Treatment) [1993] 1 FLR 376

See S v. S; W v. Official Solicitor [1972] AC 24

Gillick v. West Norfolk AHA [1986] AC 112 at 189C

Re R (A Minor) (Wardship: Medical Treatment) [1992] 1 FLR 190

Re R (A Minor) (Wardship: Medical Treatment) [1992] 1 FLR 190 at 200A

Re W (A Minor) (Consent to Treatment) [1993] 1 FLR 1

See S v. S; W v. Official Solicitor [1972] AC 24 at 43G

In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 57 et seq. Note that an adult patient may be deprived of capacity not only by long-term mental incapacity or retarded development, but also by unconsciousness, confusion, pain, shock and drugs — see In re T (Adult: Refusal of Treatment) [1993] Fam. 95

In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582. Note that treatment (therapy) includes diagnosis — see In re H (Mental Patient: Diagnosis) [1993] 1 FLR 28

In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 19D

Note that despite the use of the phrase ‘existing circumstances’, evidence of what is likely to happen in the future is admissible; see Re W (Mental Patient) (Sterilisation) [1993] 1 FLR 381

See In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 56E. The procedure for making applications for declarations in respect of medical treatment is conveniently summarised in Practice Note: Official Solicitor: Sterilisation [1993] 2 FLR 222; 16 BMLR 60

Re SG (Adult Mental Patient: Abortion) [1991] 2 FLR 329

Re GF (Medical Treatment) [1992] 1 FLR 293 (declaration unnecessary for therapeutic hysterectomy). Re E (A Minor) (Medical Treatment) [1991] 2 FLR 585 (parents can give a valid consent to therapeutic hysterectomy for incompetent minor: leave of the wardship court not necessary)

Stone J . Law Commission's proposals on mental incapacity. Clinical Risk 1996; 2(1): 10–12