Each year there are about 20 cases in the family division of the High Court in England and Wales concerning whether medical procedures should be carried out on people who are unable, or refuse, to consent to such treatment. This article examines how and why these cases need to, and do, go to court.

There are three types of cases, those in which:

* Medical opinion is that a particular course of treatment will save life–this includes whether blood transfusion should be given, a caesarean section should be performed, or even a heart transplant should be ordered against the known views of the patient

* Medical opinion is that consistently with the duty owed to the patient an aspect of treatment should be terminated so as to allow that patient to die peaceably–this centres round the termination of artificial feeding and hydration for patients in permanent vegetative states

* Those caring for a patient, supported by medical opinion, wish for a particular operation to be carried out to enhance the quality of life of the patient or to ensure improvement or prevent deterioration in his or her physical or mental health–this most commonly concerns whether sterilisation of a patient who is unable to consent should be carried out.

In legal proceedings I am brought in as a state funded lawyer to represent those who need a guardian ad litem or litigation friend (primarily children and mentally incapacitated people), or I may be asked by the court to assist as an amicus. The history of my office can be traced back to mediaeval times when the state first recognised the need for representation of an incapacitated person when a benevolent relative or friend could not be found to act on his or her behalf. The cases concerning medical treatment, of much more recent origin, take up a small but important part of my workload. I have a counterpart in Belfast who performs the same role there. In Scotland there is no equivalent institution, and this article should not be read as applying to the law, practices, and procedures in that quite separate jurisdiction.

Starting point

The starting point for lawyers and doctors alike is that intentionally touching a person is unlawful–the civil wrong of battery or even the crime of assault–unless that person has consented or there is other lawful authority. This applies to medical procedures even when carried out competently in other respects in accordance with established medical practice. There is a legal doctrine of necessity that provides lawful authority for emergency medical treatment that is both necessary and reasonable and is designed to save life, assist recovery, or ease suffering. Compulsory detention and treatment for mental disorder under the Mental Health Act 1983 have lawful authority if in accordance with, and subject to, the safeguards contained in that act. The House of Lords in the case of R versus Bournewood has extended the doctrine of necessity to cover treatment for mental disorder when there has been an informal admission to the hospital.[1] The case involving Ashworth Hospital and the moors murderer Ian Brady, who had decided to starve himself to death, is an example of a case in which the judge found that his refusal of food was a symptom, manifestation, or consequence of his mental disorder, and force feeding was therefore within the authority of that act.