Sterilisation and the Courts

Andrew Grubb; David Pearl

doi:10.1017/S0008197300117465

^{page 439 note 1} (1982) 40 A.L.R. 441, 448.

^{page 439 note 2} Paton v. B.P.A.S. [1979] 1 Q.B. 276; C. v. S. [1987] 2 W.L.R. 1108; Re D. (A Minor) [1986] 3 W.L.R. 1030. For an Australian case, see Attorney-General (ex rel. Ken) v. T. (1983) 46 A.L.R. 275.

^{page 439 note 3} Re B. (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421. For a Canadian case, see Re S.D. [1983] 3 W.W.R. 618.

^{page 439 note 4} Re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185; Re B. (A Minor) (Wardship: Sterlisation) [1987] 2 All E.R. 206; Re T, The Times 11 July 1987. For two Canadian cases, see Rek. [1985] 3 W.W.R. 204, (Wood, J.)Google Scholar and [1985] 4 W.W.R. 724 (British Columbia Court of Appeal) and Re Eve [1986] 2 S.C.R. 388.

^{page 439 note 5} Re P. (A Minor) (1981) 80 L.G.R. 301.

^{page 439 note 6} Re P. (A Minor) op. til.; Re G-U. (A Minor) (Wardship) [1984] 5 F.L.R. 811. For an Australian case, see K. v. Minister for Youth and Community Services [1982] 1 N.S.W.L.R. 311.

^{page 439 note 7} Re X., The Times, 4 June 1987; Re T. op. tit.; unreported decision of Latey, J. referred to in The Law Magazine, 29 May 1987Google Scholar.

^{page 439 note 8} For example, Re B. (1981) supra.

^{page 439 note 9} For example, Re P. supra.

^{page 440 note 10} For example, Re B. (1987) supra; Re X. supra and Re T. supra.

^{page 440 note 11} Though not always, for example, C. v. S. supra; Re X. supra and Re T. supra were applications for declarations. Similarly Re D. (1986) was a case of care proceedings.

^{page 440 note 12} See cases referred to in note 7, supra.

^{page 440 note 13} [1976] Fam. 185.

^{page 440 note 14} [1987] 2 All E.R. 206. The judgments of Bush J. and the Court of Appeal (Dillon L. J.) are also reported.

^{page 441 note 15} The operation involved the occlusion of the fallopian tubes. This is the most common form of female sterilisation performed in this country: see Barnes, , “Female Sterilisation: Medico-Legal Aspects” (1985) 1Google Scholar J. Med. Def. Union 9 (number 2); though hysterectomy is sometimes performed, e.g. Re Eve infra.

^{page 441 note 16} [1986] 2 SCR. 388. The provincial court's decision (which was overturned) is critically discussed in Starkman, B., ”Sterilization of the Mentally Retarded Adult: the Eve Case” (1981) 26 L.J., McGill931Google Scholar PubMed.

^{page 441 note 17} Ibid., at 431, per La Forest J.

^{page 441 note 18} Guardianship of Minors Act 1971, s.l and J. v. C. [1970] A.C. 668. See generally, Cretney, , Principles of Family Law (4th ed.) 1984, ch. 12Google Scholar, Lowe, N. and White, R., Wards of Court (2nd ed.) (1986)Google Scholarpassim, but especially ch. 7 and Law Commission's Working Paper, Wards of Court, No. 101 (1987), pp. 22–23.

^{page 441 note 19} [1977] Fam. 158, 163.

^{page 441 note 20} For cases in which other interests seem to have dominated see, Re X. (A Minor) (Wardship: Jurisdiction) [1975] Fam. 47 and Re L., The Independent, 16 July 1987. See also ReX. (A Minor) (Wardship: Injunction) [1984] 1 W.L.R. 1422 (the public interest). Quaere whether this was the test applied by the House of Lords in the blood test case S. v. McC., W. v. W. [1972] A.C. 24? See passim, Lowe and White, Wards of Court, ch. 7 and Cretney, op. cit., ch. 12.

^{page 441 note 21} For example, Richards v. Richards [1984] 1 A.C. 174 (ouster application); Children Act 1975, s.3 (and Adoption Act 1976, s.6) (adoption). The cases limiting the courts' wardship jurisdiction (A. v. Liverpool C. C. [1982] A.C. 363 and Re W. (A Minor) (Wardship: Jurisdiction) [1985] A.C. 791) do not limit the application of the “welfare” principle but, instead, limit the jurisdiction of the court.

^{page 442 note 22} For example, Re D. (1976) supra; Re B. (1981) supra.

^{page 442 note 23} Supra, at 212. See also Lord Bridge at 213: “[The case] is concerned only, with the question of what will promote the welfare and serve the best interests of the ward.“ and Lord Oliver at 218: ”… your Lordships are faced with the necessity of deciding here and now what is the right course in the best interests of the ward.”

^{page 442 note 24} “This rush to judgment”, The Times, 1 April 1987.

^{page 442 note 25} Re Eve, supra; Re D., supra; Re K. (at first instance) supra. Cf. Re K., supra (British Columbia Court of Appeal).

^{page 442 note 26} In Re Eve, La Forest J. explained Re K. as a case of “therapeutic sterilisation,” supra at 417–418.

^{page 442 note 27} “The disease is characterized pathologically by the growth of tiny nodules or tumours on the cells of the internal organs of the body including, in her case in particular, the brain. In the result, normal brain functioning has been destroyed … one of the clinical features … is epilepsy … Statistically there is a 20 per cent chance that one or more of the tumours of the brain will develop malignantly. She can otherwise expect to live a normal lifespan,” per Wood J., supra, at 208–209.

^{page 443 note 28} Unlike the judgment of the Court of Appeal, Lord Oliver fully set out the facts in his speech, supra at 215–218. See also Lord Hailsham at 212.

^{page 443 note 29} Supra, at 401. See also at 429.

^{page 443 note 30} A congenital abnormality. “Its cause is obscure, but it includes some or all of the following signs and symptoms, namely, accelerated growth during infancy, epilepsy, generalised clumsiness, an unusual facial appearance, behaviour problems including emotional instability, certain aggressive tendencies, some impairment of mental function which could result in dull intelligence or possibly more serious mental retardation,”per Heilbron J., supra, at 188.

^{page 443 note 31} Namely a contraceptive pill regime. Supra at 217–218 per Lord Oliver: “The danger to which she is exposed and the speculative nature of the alternative proposed are such that.… the risk is not one which should properly be taken by the court.” The solution in Re B. was considered a “last resort.” See also Dillon L.J. at 211 and Lord Hailsham at 212–213.

^{page 443 note 32} Wentzel, v.Montgomery General Hospital Inc. 447 A 2d 1244, 1254 (1982)Google Scholar per Murphy C.J. In the United States different conclusions have been reached in the various states as to whether the court may authorise a sterilisation operation. Some hold there is no jurisdiction, for example, Hudson v. Hudson 373 So 2d 310 (1979); Guardianship of Tulley 146 Cal Reptr 266 (1978); Matter of S.C.E. 378 A 2d 144 (1977); Application of A.D. 394 N.Y.S. 2d 139 (1977). Since 1978 there has been a growing recognition that the courts do have jurisdiction, for example, Matter of CD.M. 627 P 2d 687 (1981); Matter of Guardianship of Eberhardy 307 NW 2d 881 (1981); Matter of Guardianship of Hayes 608 P 2d 635 (1980); Wentzel v. Montgomery General Hospital Inc. 447 A 2d 1244 (1983); in the Matter of Mary Moe 432 NE 2d 712; Mildred G. v. Valerie N. 707 P 2d 760 (1985).

^{page 444 note 33} ibid.

^{page 444 note 34} Ibid., at 1250–1251 quoting Matter of A.W. 637 P 2d 366, 375–376 (1981) (Supreme Court of Colorado). Contrast Davidson J. at 1263 (dissenting): “… treating medical necessity as a controlling factor results in an unacceptable degree of interference with an incompetent minor's right to make decisions concerning sterilization because such a controlling factor might well prevent an individual who would wish to be sterilized if competent from being sterilized.”

^{page 444 note 35} The Times, 11 July 1987.

^{page 444 note 36} Supra, at 213 per Lord Hailsham.

^{page 444 note 37} Supra, at 214 per Lord Bridge.

^{page 445 note 38} Re K., supra, at 221 per Wood J.

^{page 445 note 39} See Lord Templeman in Re B., supra, at 215: “…it would be cruel to expose the girl to an unacceptable risk of pregnancy which could only be obviated by sterilisation in order to prevent child bearing and child birth in circumstances of uncomprehending fear and pain and risk of physical injury” (emphasis added).

^{page 445 note 40} See U.S. cases: Wentzel, supra; Matter of A.W., supra. Ct. Re Grady, supra; Matter of the Guardianship of Hayes, supra; Matter of Mary Moe, supra.

^{page 445 note 41} Supra, per Lord Hailsham at 213; per Lord Bridge at 214; per Lord Oliver at 219.

^{page 445 note 42} Supra, at 219. See also Lord Bridge at 213.

^{page 445 note 43} Lord Bridge considered Re Eve to be correct on its own facts, supra at 214.

^{page 445 note 44} 426 A 2d 467 (1981).

^{page 445 note 45} See Matter of the Guardianship of Hayes, 608 P 2d 635 (1980).

^{page 445 note 46} 274 U.S. 200, 207 (1927). In Re B. both Lord Bridge (at 213) and Lord Oliver (at 219) denied that their case had anything to do with eugenics.

^{page 446 note 47} [1976] Fam. 185, 193.

^{page 446 note 48} Supra, at 436.

^{page 446 note 49} “For Her Own Good”, (1987)84 L.S.G. 949. See also the reply by Thomas, A., (1987) 84 L.S.G. 1196.Google ScholarNote the Irish wit of J., Walsh in G. v. An Bord Uchtala (1978) 113 I.L.T.R. 25Google Scholar (Supreme Court) that “it is also to be borne in mind that some inalienable rights are absolutely inalienable while others are relatively inalienable”!

^{page 446 note 50} Supra, at 215.

^{page 447 note 50a} The case is unreported. This extract is taken from Fawcett, J. E. S., The Application of the European Convention on Human Rights (first edition) (1969) at 30Google Scholar. The second edition (1987) does not contain the extract.

^{page 447 note 50b} See further McLean, S. A. M. and Campbell, T. D., “Sterilisation”, in Legal Issues in Medicine (1981) McLean, Sheila A. M.Google Scholared., at 176ff.

^{page 447 note 51} Supra, at 213.

^{page 447 note 52} Note the criminal offences under s.58 of the Offences against the Person Act 1861 and s.l of the Infant Life (Preservation) Act 1929. Compliance with the Abortion Act 1967 does not provide a defence to the latter: see section 5(1), Abortion Act 1967. See the recent case of C. v. S. [1987] 2 W.L.R. 1108.

^{page 447 note 53} Supra, at 213. See also Lord Oliver at 219.

^{page 448 note 54} Supra, at 214.

^{page 448 note 55} [1985] 4 W.W.R. 724.

^{page 448 note 56} Ibid., at 756.

^{page 448 note 57} 426 A 2d 467 (1981).

^{page 448 note 58} [1985] 1 All E.R. 643, 649.

^{page 448 note 59} Ibid., at 660.

^{page 449 note 60} But note the Ministry of Health Circular F/P9/1B of 14 April 1967 advising hospital staff in this situation.

^{page 449 note 61} [1987] 2 W.L.R. 1108, 1123.

^{page 449 note 62} [1986] A.C. 112. Though it could be argued that these particular guidelines are less than helpful.

^{page 449 note 63} [1985] 3 W.W.R. 204, 232–233.

^{page 449 note 64} (1981) 115 D.L.R. (3d) 283, 307–309.

^{page 450 note 65} For example, that “the individual to be sterilized should be represented by legal counsel competent to deal with medical, legal, social and ethical issues involved in sterilization,” ibid. See generally, Law Commission of Canada Working Paper 24 (1979), “Sterilization”. For U.S. cases laying down guidelines to assist in determining what the ”best interests” test means in a particular case see, for example, in Matter of C.D.M. supra, in the Matter of the Guardianship of Hayes supra, Wentzel v. Montgomery General Hospital lnc, supra.

^{page 450 note 66} See the approach of the British Columbia Court of Appeal in Re K., supra. See also Re F. (An Infant) [1969] 2 All E.R. 766, 768, per Megarry, J. See the discussion in the Law Commission's Working Paper No. 96, Review of Child Law: Custody, (1986)Google Scholarparas. 6.28–6.39.

^{page 450 note 67} [1986] A.C. 112.

^{page 450 note 68} Section 3, Children Act 1975 (s.6, Adoption Act 1976); see Cretney, op. cit., at p. 334 and Law Commission Working Paper No. 96, op. cit., paras. 6.40–6.44; Lowe and White, op. cit., para. 6.55.

^{page 450 note 69} Eekelaar, , “The Eclipse of Parental Rights” (1986) 102Google Scholar L.Q.R. 4, 8. See also Bainham, A., “Handicapped Girls and Judicial Parents” (1987) 103 L.Q.R. 334, 339Google Scholar. But see Re S. W. (A Minor) (Wardship: Jurisdiction) [1986] 1 F.L.R. 24.

^{page 450 note 70} [1984] 5 F.L.R. 811.

^{page 451 note 71} (1981)80L.G.R. 301.

^{page 451 note 72} “I am quite satisfied that … she understands the implications of [the abortion]…” ibid., at 306.

^{page 451 note 73} Ibid., at 307.

^{page 451 note 74} See, Bainham, , “The Balance of Power in Family Decisions” [1986] C.L.J. 262, 274–275Google Scholar.

^{page 451 note 75} Lowe and White op. cit., at para. 6.55.

^{page 451 note 76} J. v. C. [1970] A.C. 688. See Cretney, op. cit., at 329–331.

^{page 451 note 77} [1981] 1 W.L.R. 1421.

^{page 452 note 78} Ibid., at 1424.

^{page 452 note 79} Ibid.

^{page 452 note 80} [1985] 4 W.W.R. 724, 756.

^{page 452 note 81} Supra, at 214.

^{page 453 note 82} [1985] 3 All E.R. 402. Discussed in Grubb, A. and Pearl, D., “Medicine, Health, the Family and the Law” [1986] Family Law 227, 235–240Google Scholar. See also Hoggett, B., “Parents, Children and Medical Treatment: The Legal Issues”, in Rights and Wrongs in Medicine (1986) ed.Byrne, P. at p. 158Google Scholar.

^{page 453 note 83} Supra, at 210.

^{page 453 note 84} Supra, per Lord Fraser at 411 and especially Lord Scarman at 421 etseq. Lord Scarman's view (at 424) in relation to contraception that “there is much that has to be understood … if she is to have legal capacity to consent …” must, a priori, be true in the case of irreversble surgical treatment for contraceptive purposes. As a consequence, “great responsibilities will be [placed] on the medical profession” in determining the competence of a girl seeking sterilisation (at 425).

^{page 453 note 85} See Samuels, A., “Can a Minor (Under 16) Consent to a Medical Operation?” [1983] Fam. Law 30Google Scholar.

^{page 454 note 86} Samuels ibid., arguing that it is unlikely, but would nevertheless be lawful. See also Skegg, P. D. G., Law, Ethics and Medicine (1984) at 68–71Google Scholar arguing (in the case of competent under 16-year-olds) that legality may depend on whether treatment is “lifesaving”. The answer will involve a balancing of factors “including the minor's age, the strength of his objections and the reasons for them.” He notes that a doctor would be unlikely to proceed if “physical resistance” was offered. All these would be relevant in the case of an incompetent child.

^{page 454 note 87} Supra, per Lord Scarman at 423 and 422 “parental rights yield … when he reaches sufficient understanding and intelligence.” Quaere Lord Fraser (at 412) who saw the issue of who may consent as turning on a solution to the question of who “are the best judges of a child's welfare”? Lord Bridge agreed with both speeches. Lord Templeman (outside of contraceptive treatment) appeared to favour Lord Scarman's view (at 432, 434–435). See the discussion by Lee, S., “Towards a Jurisprudence of Consent” in Oxford Essays in Jurisprudence, 3rd series (1987) ed. Eekelaar, J. and Bell, J. at pp. 199, 203–212Google Scholar.

^{page 454 note 88} Supra, per Lord Templeman at 434: “No authority compels a doctor to disclose to a parent … any information obtained as a result of a conversation between the doctor and the infant.” See also Montgomery, J., “Confidentiality and the Immature Minor” [1987]Google Scholar Fam. Law 101, arguing for an obligation of confidentiality even in some cases where the “patient” is incompetent to consent to the treatment sought or proposed.

^{page 454 note 89} See, ironically, Lord Templeman's remarks in Gillick, supra, at 432 and 434–435. See also Lord Scarman at 422. Generally, Bainham, A., “The Balance of Power in Family Decisions” [1986] C.L.J. 262Google Scholar.

^{page 454 note 90} R. v. Gyngall [1893] 2 Q.B. 232.

^{page 454 note 91} But not the parents in these situations, see A. v. Liverpool C.C. [1982] A.C. 363 and Re W. (A Minor) (Wardship: Jurisdiction) [1985] A.C. 791. See also the discussion in the Law Commission's Working Paper No. 101, op. cit., at 53–60.

^{page 455 note 92} Supra, at 756.

^{page 455 note 93} Supra, at 214.

^{page 455 note 93a} The crime is discussed by Skegg, op. cit., at 43–46.

^{page 455 note 94} Skegg, ibid., and Corbett v. Corbett [1971] p. 83 (castration for transexual, therapeutic reasons not considered per se unlawful).

^{page 455 note 95} Skegg, op. cit., at 32–38 and Skegg, , “Medical Procedures and the Crime of Battery” [1974] Crim.L.R. 693Google Scholar.

^{page 455 note 96} Coney (1882) 8 Q.B.D. 534.

^{page 455 note 97} Donovan [1934] 2 K.B. 498.

^{page 455 note 98} [1981] Q.B. 715.

^{page 456 note 99} Ibid., at 719.

^{page 456 note 1} [1954] 1 W.L.R. 1169. Both Sir Raymond Eveished M.R. and Hodson L.J. dissociated themselves from these views (at 1175).

^{page 456 note 2} Gillick, supra., Cataford v. Moreau (1978) 114 D.L.R. (3d) 585, Thake v. Maurice [1984] 2 All E.R. 513. The English cases rely, inter alia, on the existence of legislation allowing contraception within the National Health Service: National Health Service Act 1977, s.5(1)(b). In some cases Parliament has intervened to prevent an otherwise valid consent from being valid on grounds of public policy, for example, Tattooing of Minors Act 1969 and Prohibition of Female Circumcision Act 1985 (note the “therapeutic” exception in s.2(2)). And see passim, Poulter, S., English Law and Ethnic Minority Customs, 1986Google Scholar, paras. 6.20–6.33. At common law the former was probably contrary to public policy (Burrell v. Harmer (1966) 116 N.L.J. 1658 and R. v. Dilks (1964) 4 Med. Sci. Law 209); the legality of the latter had never been determined, but surely it was illegal?: see, Hayter, “Female Circumcision—Is there a Legal Solution?” [1984] J.S.W.L. 323Google Scholar and MacKay, , “Is Female Circumcision Unlawful?” [1983] Crim.L.R. 717Google Scholar.

^{page 456 note 3} For a discussion of the G.M.C.'s powers and the meaning of “serious professional misconduct” see, Brazier, M., Medicine, Patients and the Law (1987) pp. 9–13Google Scholar; A Whitfield, , “The General Medical Council” in Medical Malpractice (1980)Google Scholarch. 1.

^{page 456 note 4} It should be noted that “serious professional misconduct” does not necessarily connote moral censure: R. v. Pharmaceutical Society of Great Britain ex. p. Sokoh, The Times, 4 December 1986 cited in (1987) 55 Medico-Legal J. 3–5.

^{page 456 note 5} Kloss, D. M. “Consent to Medical Treatment”, (1965)Google Scholar5 Med. Sci and Law 89.

^{page 457 note 6} Hoggett, B., Mental Health Law, 2nd ed. 1984 at 203Google Scholar. See also P. D. G. Skegg op. cit., at 72–73.

^{page 457 note 7} Section 3(1).

^{page 457 note 8} Part IV of the Act, especially section 63: ‘mental disorder from which he is suffering”. See Re T., supra, per Wood J.

^{page 457 note 9} Gostin, L., Mental Health Services—Law and Practice, 1986Google Scholar, paras. 20.09 and 11.07.5.

^{page 457 note 10} Ibid., para. 20.19.1.

^{page 457 note 11} This conferred on a guardian all the powers that would be exercisable by the father of a child under the age of 14 which would include the power to consent to medical treatment.

^{page 457 note 12} See Picard, E., Legal Liability of Doctors and Hospitals in Canada, 2nd ed., (1984), pp. 45–6Google Scholar. Such a power was accepted, in the case of a child/patient, by the judges in Gillick. See Lord Scarman, supra, at 424 and Lord Templeman at 432: “the doctor must have the courage of his convictions that the treatment is necessary and urgent in the interests of the patient and the court, will … approve after the event …”

^{page 457 note 13} Wilson v. Pringle [1987] Q.B. 237, 252per Croom-Johnson, L.JGoogle Scholar. See the Canadian, cases of Parmley v. Parmley [1945] 4 D.L.R. 81Google Scholar; Murray v. McMurchy [1949] 2 D.L.R. 442 and Marshall v. Curry [1933] 3 D.L.R. 260, which would seem to represent English law: P. D. G. Skegg op. cit., pp. 101–106 and ch. 5 passim.

^{page 458 note 14} The Law Magazine, 29 May 1987. The girl was aged 25 with a mental age of three and a half. She was only four feet five inches tall and 20 weeks pregnant.

^{page 458 note 15} Re X., The Times, 4 June 1987. The age of the girl is not reported but she was an adult. The judge seems to have taken into account the “substantial risk of the foetus being affected by Down's Syndrome and/or being deformed”. Quaere the relevance of these to the girl's best medical interests?.

^{page 458 note 16} Gostin, op. cit., para. 20.16.1. See also P. D. G. Skegg, op. cit., at 105.

^{page 458 note 17} The Times, 11 July 1987.

^{page 458 note 18} 8 Halsbury's Laws, 4th ed. para. 901.

^{page 458 note 19} The Court of Protection— Practice and Procedure, 10th ed. (1978) pp. 5–7 (the 11th edition omits the relevant chapter).

^{page 458 note 20} Mental Health Law, op. cit., at 331–332.

^{page 459 note 21} Op. cit., at para. 23.01.

^{page 459 note 22} See also B. Starkman, op. cit., at 941–943.

^{page 459 note 23} (1827) 2 Russ. 1, 20. See also Lord Redesdale in the House of Lords: (1828) 2 Bli. N.S. 124, 131.

^{page 459 note 24} Beverley's Case (1603) 4 Co. Rep. 123, 126 per Coke C.J. and Heywood and Massey, op. cit., at p. 6.

^{page 459 note 25} Supra, at 411. A possible example of the parens patriae in relation to an adult can be seen in the Quebec case of Institut Phillippe Pinel de Montreal v. Dion (1983) 2 D.L.R. (4th) 234 where the court authorised treatment on an incompetent prisoner. Since Quebec is a civil law jurisdiction the case may have to be explained on other grounds. See the discussion in Somerville, M., “Refusal of Medical Treatment in ‘Captive Circumstances’” (1985) 63 C.B.R. 59Google Scholar.

^{page 459 note 26} Supra, at 212.

^{page 459 note 27} Supra, at 218.

^{page 459 note 28} Supra.

^{page 459 note 29} Supra, at 407–427.

^{page 460 note 30} Theobald, op, cit., in the preface.

^{page 460 note 31} Statute de Prerogativa Regis, 17 Edw. 2, sections 9 and 10. See generally on “lunatics” and “idiots”: Blackstone's Commentaries (1st ed.) Book 1, ch. 8; Heywood and Massey, op. cit., at p. 6; Holdsworth, , A History of the English Law, 7th ed., (1956) vol. i, at pp. 473–474Google Scholar; Pollock, and Maitland, , History of English Law, vol. 1, 2nd ed., at p. 481Google Scholar.

^{page 460 note 32} Ibid., at p. 474, citing Pope, Lunacy (1877) at p. 24.

^{page 460 note 33} Pollock and Maitland, op. cit., at pp. 318–329; Holdsworth, op. cit., vol. vi, at p. 648 and Cross, “Wards of Court” (1967) 83 L.Q.R. 200.

^{page 460 note 34} See, generally Bell, , The Court of Wards and Liveries (1953)Google Scholar. The tenurial institution of wardship was abolished by the Statute of Tenures, 12 Charles 11, c.24, in the same year as the abolition of “Knight's service tenure” and the military tenures which, if the heir to such a person was an infant, created the wardship (Military Tenures Abolition Act).

^{page 460 note 35} Though not always. See the discussion of warrants addressed to the Lord High Treasurer in Wigg v. Tyler (1779) 2 Dick. 552.

^{page 460 note 36} In 1851. In addition, after 1852 both the Lord Chancellor and the other judges, as the judges delegated the parens patriae power, exercised the complementary statutory jurisdiction in lunacy jointly by virtue of an Act of that year, 15&16 Vict., c.87, s. 15. Cf. La Forest J.in Re Eve (supra at 408–409), who mistakenly thinks that in that year the parens patriae power was vested in the judges as well.

^{page 460 note 37} After the Judicature Act 1875. Until 1956 the warrant delegating power was addressed to named judges, so that on appointment, either these judges had to be added or a new warrant issued. But in that year the warrant was for the first time addressed to the “Lord Chancellor” and judges of the Court of Chancery “for the time being”.

^{page 461 note 38} Falkland v. Bertie (1698) 2 Vern. 33,342: “In this court there were several things that belonged to the King as Pater Patriae and fell under the care and direction of this Court, as … [inter alia] infants … and afterwards such of them as were of profit and advantage to the King were removed to the Court of Wards by statute; but upon the dissolution of that Court came back again to the Chancery”. Possibly, the Court of Chancery always retained a wardship jurisdiction in cases which “fell outside the purview of the Court of Wards and Liveries”, Holdsworth, op. cit., vol. v, p. 315.

^{page 461 note 39} Supra, at 408.

^{page 461 note 40} 17 Edw. 2. There is some doubt as to whether it was actually a genuine statute: see Holdworth, op. cit., vol. i, p. 473 note 8 and vol. ii, pp. 222–223.

^{page 461 note 41} Oxenden v. Lord Compton (1793) 2 Ves. 69.

^{page 461 note 42} Attorney-General v. De Keyser's Royal Hotel [1920] A.C. 508 and see Wade and Bradley, , Constitutional and Administrative Law, 10th ed., (1985), at pp. 252–253Google Scholar.

^{page 462 note 43} Re W. (E.E.M) [1971] Ch. 123.

^{page 462 note 44} Dimond, B., “Filling in The Gaps With the Common Law” (1984) 134 N.L.J. 693, 695Google Scholar.

^{page 462 note 45} Jacob, J., “The Right of The Mental Patient To His Psychosis” (1976) 39 M.L.R. 17, 38–39Google Scholar PubMed.

^{page 462 note 46} Re W. (E.E.M.), supra.

^{page 462 note 47} For example, Hoggett, op. cit., at 335, and, generally, M. Hinchcliffe [1987] Fam. Law 271.

^{page 462 note 48} See the approach in R. v. Secretary of State for the Home Department, ex. p. Northumbria Police Authority [1971] 2 All E.R. 282.

^{page 462 note 49} Supra, text and notes 109–110.

^{page 462 note 50} Op. cit., at p. 10.

^{page 462 note 51} London Gazette, 11 November 1960 (the date of the warrant was 1 November 1960). Quaere whether this was either based upon a misunderstanding that the Court of Protection's jurisdiction was co-extensive with the parens patriae jurisdiction (note the warrant states “having regard to the provision made …”) or (ii) because of the now non-existent guardianship provisions in the 1959 Act?

^{page 463 note 52} Op. cif., at pp. 10–11.

^{page 463 note 53} Volume 1 at p. 14.

^{page 463 note 54} Op. cit. See also Halsbury, op. cit., at para. 901, note 6, and Hinchcliffe, op. cit., at p. 273.

^{page 463 note 53} Op. cit., at pp. 474–475.

^{page 463 note 56} Beall v. Smith (1873) L.R. 9 Ch. App. 85, 92 per James, L.J.Google Scholar

^{page 463 note 57} Heywood and Massey, op. cit., p. 9.

^{page 463 note 58} Quaere whether this might be the basis for the false assumption that a spouse may give a valid consent to treatment?

^{page 463 note 59} Holdsworth, op. cit., vol. i, at pp. 475–476.

^{page 463 note 60} See also, Lunacy Act 1890 as amended.

^{page 463 note 61} Section 12. See Gostin, op. cit., at para. 23.01.

^{page 464 note 62} Legislation exists in many of the Canadian provinces allowing for “surrogate” consent to medical treatment in the case of an incompetent adult, e.g., Dependent Adults Act 1980 in Alberta, s.9(l)(h) (including sterilisation: s.1(h)(ii)). See E. Picard, ibid., pp. 61–62 and 138–139.

^{page 464 note 63} E. Picard, op. cit., at p. 141.

^{page 464 note 64} See, for example, Gibbs, F., “Wanted: guardians for the new Jeanettes”, The Times, 24 06 1987Google Scholar.

^{page 464 note 65} Supra.

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