A Local Authority v Mrs A and Mr A

English Medical Law

A Local Authority v Mrs A and Mr A
Image: ‘Autism’ by Samadhi Rajakarunanayake

Note: To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ at Amazon, Waterstones or Barnes & Noble (or go here for a full list of international outlets)


When two mentally challenged adults elect to cohabit and then marry, the nature of their relationship is brought into question, after a pattern of domestic abuse overshadows any informed choice to start a family. It is then that the local authority seeks forced contraception to prevent the continuation of suffering and a potential loss of children through predicted adoption.

With diagnosed Atypical Autism, the applicant in this Court of Protection case found herself at an emotional impasse when trying remain in her marriage and evaluate the sensibility of motherhood under the suffocating grasp of a controlling partner. The two parties involved met when working as community volunteers, and while the husband had enjoyed the security of a close family relationship, the wife had been fatherless from a young age, before being forced to live alone (albeit with community support) when her mother emigrated a number of years later.

Through a series of dysfunctional relationships, the applicant had also found herself pregnant on two separate occasions, both of which resulted in her surrendering the child to the care system, on grounds that her limited intelligence and reasoning skills fell far short of those required to provide a safe parenting environment. In fact it was only after having met her now husband, that the couple were given the freedom to live together under the regular supervision of the local authority. In order to prevent further unwanted pregnancies, the applicant was asked to undergo routine depot injections under the terms of her Guardianship order as enacted under the Mental Health Act 1983.

During the course of their time together, the husband (who himself suffered from low intelligence) began to exhibit domineering behaviour over the applicant, often obstructing access to those assigned her monitoring, until reaching the level that her social activity was virtually non-existent, and when seen by her case managers, she displayed minor bruising and complained that she was both unhappy and afraid of her partner.

It was also disclosed that in recent months they had decided to start a family, and that she no longer wished to receive the injections; although when given the freedom to respond alone, the applicant often expressed her reservations, but that unless complied with she feared becoming homeless, as the property shared was beneficially his. Despite making concerted attempts to maintain regular contact, the aggressive manner in which her husband denied them access left the council unable to assess both her personal safety, and the risks of her falling pregnant while under the pervasive influence of a man lacking any cogent understanding of her fragility and fear of reprisal.

Having exhausted all options surrounding the management of the applicant’s social care, it was left to the Court of Protection to determine (i) that the applicant understood the concept of motherhood, (ii) that she could likewise make a measured decision as to her cessation of contraception, and (iii) that an injunction need be applied to her husband to prevent future interference in her autonomous rights. What distinguished this matter from many before, was that the issue of contraception had not been properly considered when assessing mental capacity, so the validity of applying a judicial test raised genuine doubts as to the widening of qualifying criteria over and above that of a State medical clinic.

While it was also considered that the applicant had undergone a number of interviews concerning parental responsibility and contraception, her answers often ran risk of appearing scripted, therefore the balance hung in equal measure regards any certainty of mind when entering into pregnancy, or likewise preventing it. It was on this additional evidence that the court found a test of mental capacity was by extension, unfair when her freedom to choose was strangulated by external persuasions.

It was then decided that the best way forward was through deliberate post-natal education and greater inclusion of the husband into the decision making process, which would not only show support of art.8 of the ECHR (right to respect for private and family life) and art.12 (founding a family), but preclude the need for State intervention where mediation and continued encouragement for capacitous thinking would hopefully give rise to the best possible outcome for all.

Key Citations

“[T]he administration of contraception is different from any other medical procedure, since (leaving aside sterilisation) no other medical procedure, or the refusal of it, produces such significant social consequence as the potential creation of a child.”

“Although in theory the ‘reasonably foreseeable consequences’ of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons.”

“To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering. Further, if one were to admit of a requirement to be able to foresee things beyond a child’s birth, then drawing a line on into the child’s life would be nigh impossible.”

“[A]ny opinion as to Mrs A’s capacity based in part on an assumption as to what might happen to a child of Mr and Mrs A, must be flawed as to both the test itself and the assumed likely facts.”

“In view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A, I am satisfied that her decision not to continue taking contraception is not the product of her own free will.”

“[A]ny step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life.”

“I certainly do not think the court should intervene at a stage when Mr A has not yet been included in any ability-appropriate discussion or help on the contraception issue; when Mr and Mrs A have not yet had any therapeutic input as a couple about it (as recommended by Dr K), nor about their relationship generally; and when they have not yet had the chance to be helped to understand this judgment.”

Re SB (A patient: capacity to consent to termination)

English Medical Law

Re SB (A Patient: capacity to consent to termination)
Image: ‘Pregnant Therese’ by Helene Knoope

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

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I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil

A Local Authority v E

English Medical Law

A Local Authority v E
Image: ‘Woman in Foetal Position’ by Unknown Artist

Note: To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ at Amazon, Waterstones or Barnes & Noble (or go here for a full list of international outlets)


The struggle for autonomy amidst the pain of abuse, is central to a case involving the wishes of a patient with a debilitating illness, and the requisite obligations of the State. By balancing the safeguarding nature of the Mental Capacity Act 2005 with Convention rights, it is left to the courts to determine which argument offers the greatest reasoning.

After experiencing years of intense sexual abuse during the formative years of her childhood, the patient in question became prisoner to her manifestations of trauma, through increased dependency on alcohol and medically prescribed opiates. The prologue is one of repeated lapses of overall function, underpinned by contrasting highs of academic achievement that defied her emotional scars; but through time, the former overshadowed the applicants deliberate plans for happiness, in the form of chronic anorexia nervosa.

Following hospitalisation on numerous occasions through dangerously low body weight, and a number of therapeutic approaches proving collectively unsuccessful, it was decided by the applicant to submit advanced decisions surrounding life sustaining procedures, where her health suffered to the point of imminent death; only to then provide paradoxical statements portraying her deep conviction to regain a life of meaning that had once been enjoyed. This cyclical existence placed prolonged stress upon the applicant’s health, and that of her parents and appointed specialists, who had all extended themselves beyond any obligation to keep what was considered an engaging, and yet tormented, woman alive.

Several years of medical intervention provided little to no lasting results, and so it was largely accepted that after a year of no real calorific ingestion, the patient had made clear her decision to refuse food, and that in light of her last advanced decision, she wished to remain in palliative care until the date of her impending death. When her BMI (body mass index) then reached a potentially fatal level, it was with the concerns of those assigned her care, that the matter went before the Court of Protection, in the aim of determining if (i) the patient lacked mental capacity at the time her last advanced decision was made, and (ii) whether it was in her best interests to cease intervention, and leave her to die with dignity, or resort to long-term invasive nasogastric treatment to restore her BMI to that where therapeutic rehabilitation could again recommence.

Art.2 of the Human Rights Act 1998 (Right to life) determines that the State is under a duty to protect the individual right to life, and yet art.3 (Prohibition of torture) serves to prevent any inhuman or degrading treatment, which in this case, the proposed medical programme would, by all accounts, place unreasonably high levels of physical and emotional stress upon the patient; in part as the result of years of previous treatments producing a ravaged immune system with weakened bones mass. However, art.5 (Right to liberty and security) and art.8 (Right to respect for private and family life) both enforced the applicant’s right to die with dignity, in a manner that suited both herself and her family.

In light of her advanced decision, the contradiction of mental capacity while suffering from an eating disorder, allowed s.3(1) of the Mental Capacity Act 2005 to question if the cessation of ingestion can validate the supposition that a person can understand and evaluate, information as part of a decision making process, when they are consciously killing themselves, despite knowing the consequences of that action. For that reason, it was then argued that any suggestion that the advanced directive was undertaken while compos mentis, failed when an irrational request serves only to end a life and not preserve it.

With full appreciation of the medical evidence and lengthy testimony of all parties (aside from the patient whose heath was too critical for an appearance), it was concluded that in spite of the discouraging background to both the applicant’s childhood experiences and the endemic frustrations of anorexia, there remained a concept and hope, that at the age of thirty-two, it was not too late to rule out any meaningful recovery, nor the chance for the applicant to resume the full life she had once, if only briefly, created. For those reasons, the applicant was deemed lacking mental capacity at the execution of her advanced decision, that forcible restitution was in her best interests, and that such action failed to interfere with the rights presented.

Key Citations

“[I]t is artificial to treat the various forms of intervention involved in forcible feeding individually. They are all central to or supportive of a single purpose. I therefore find that E lacks capacity to accept or refuse treatment in relation to any interventions that are necessary in conjunction with forcible feeding.”

“E’s actual behaviour in refusing food has been entirely consistent with her decision and I would have been reluctant to conclude that her decision was undermined by trusting statements about what are bound to be deeply mixed feelings.”

“For present purposes, I find nothing in E’s statements to indicate a belief that, if she were well, she would not want efforts to be made to save her.”

“[T]he balance to be struck places the value of E’s life in one scale and the value of her personal independence in the other, with these transcendent factors being weighed in the light of the reality of her actual situation.”

“If taken too far, the argument that everything that can be done must be done carries the risk of discrimination against incapacitated persons by depriving them of options that are available to the capacitous…”

Re C (Adult: Refusal of Treatment)

English Medical Law

Re C (Adult: Refusal of Treatment)
Image: ‘The Scream’ by Edvard Munch

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

Where can I buy it?

The book is available now through most Amazon sites thanks to the brilliance of Print on Demand (POD) technology and it is also printed through Ingram Spark (aka Lightning Source), who, through their worldwide  partnership agreements, supply ‘The Case Law Compendium’ to almost 40,000 retailers, libraries, schools and universities while providing worldwide shipping as standard.

America

Amazon.com, Barnes & Noble

Australia & New Zealand

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Canada

AmazonChapters Indigo

France

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India

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Italy

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Japan

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Latin America

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I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil

PC v City of York Council

English Medical Law

PC v City of York Council
Image: ‘Silhouette Profile’ by Unknown Artist

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

Where can I buy it?

The book is available now through most Amazon sites thanks to the brilliance of Print on Demand (POD) technology and it is also printed through Ingram Spark (aka Lightning Source), who, through their worldwide  partnership agreements, supply ‘The Case Law Compendium’ to almost 40,000 retailers, libraries, schools and universities while providing worldwide shipping as standard.

America

Amazon.com, Barnes & Noble

Australia & New Zealand

Booktopia

Britain

AdlibrisAmazon,   BlackwellWaterstones

Canada

AmazonChapters Indigo

France

Amazon

Germany

Amazon

India

Amazon

Italy

Amazon

Japan

Amazon

Latin America

Amazon Brazil

Amazon Mexico

Spain

Amazon

I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil

Gregg v Scott

English Medical Law

Gregg v Scott
Image: ‘The Doctor’ by Sir Luke Fildes

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

Where can I buy it?

The book is available now through most Amazon sites thanks to the brilliance of Print on Demand (POD) technology and it is also printed through Ingram Spark (aka Lightning Source), who, through their worldwide  partnership agreements, supply ‘The Case Law Compendium’ to almost 40,000 retailers, libraries, schools and universities while providing worldwide shipping as standard.

America

Amazon.com, Barnes & Noble

Australia & New Zealand

Booktopia

Britain

AdlibrisAmazon,   BlackwellWaterstones

Canada

AmazonChapters Indigo

France

Amazon

Germany

Amazon

India

Amazon

Italy

Amazon

Japan

Amazon

Latin America

Amazon Brazil

Amazon Mexico

Spain

Amazon

I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil

Chester v Afshar

English Medical Law

Chester v Afshar
Image: ‘No Full Disclosure’ by Robert Burridge

Note: To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ at Amazon, Waterstones or Barnes & Noble (or go here for a full list of international outlets)


‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. In this matter, the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.

After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief, and had now given serious thought to surgical intervention, despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length, she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.

The recommended procedure involved delicate removal of a number of vertebrae that would by extension, bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action, along with the known side-effects and possible nerve damage. Having consented to undergo the surgery, the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated, and which had in fact left the respondent immobile and diagnosed with cauda equina syndrome.

Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision, it was important to address both the breach of duty to fully disclose, and the liability for the subsequent injury arising from the procedure. On this occasion, and relying upon the evidence presented, the court took time to debate the principal function of causation, in which the defendant is not required to establish exemption, but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss, and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.

With judgment found in favour of the respondent in the first hearing, the surgeon moved to appeal, before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords, that the finer details of causation and right to damages became of greater significance.

While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent, and it had been proven as well as agreed, that irrespective of the performing surgeon, the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.

However, the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient, it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle, the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly.

Key Citations

“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”

“In this case there is no dispute that Mr Afshar owed a duty to Miss Chester to inform her of the risks that were inherent in the proposed surgery, including the risk of paralysis.”

“It was his duty to warn her of the risks of the operation that he was proposing to perform, and it was in the course of that same operation that she sustained the very kind of injury that he ought to have warned her about.”

“To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most.”

“The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.”