Sterilization, the mentally incompetent and the courts.

Abstract

Concerns relating to the bases and justifications for judicial intervention in decisions concerning the irreversible sterilization of those who lack mental capacity have been much aired in recent years. In F v. Berkshire HealthAuthority) the House of Lords has attempted to set a firm conceptual basis for the intervention of the Courts. This latest attempt at clarification of the law in scope goes beyond the rulings in Re B,2 and to a large extent amplifies the approach taken by the High Court in Tv. T.3 However desirable the factual conclusion in Re F may be, the criticisms levelled at earlier authorltiess may well be equally valid in respect of Re F. The judgments in Re F are, it is suggested, categorized by vagueness, breadth, and by the failure to establish an adequate regulatory regime providing safeguards for those who are being irreversibly deprived of child bearing capacity. F was an informal mental patient aged 35 but with a mental capacity of a four or five year old person. She was an in-patient at a mental hospital and had formed a sexual relationship with another patient. There was medical evidence that it would be a disaster, from a pyschiatric point of view, for her to become pregnant, in that she could not cope with pregnancy, labour or delivery, nor could she care for a baby. Further medical evidence showed ordinary methods of contraception would not be satisfactory. In those circumstances the medical staff in charge of F decided that the best course was for F to be sterilized, and accordingly F's mother, acting as F's next friend, sought a declaration that it would not be unlawful to sterilze F. In the High Court> Scott Baker J granted the declaration sought. An appeal by the Official Solicitor was dismissed by the Court of Appeale which held that the court would permit such an operation if it was necessary in the public interest. The Court discussed extensively the jurisdiction to make a declaration concerning the legality of the operation,