MB v RB

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 23 April 2012
• Court: Grand Court (Cayman Islands)
• Date: 23 April 2012

Grand Court, Civil Division

(Williams, J.)

MB and CB

and

RB

J. Young for the applicants.

Cases cited:

(1) Bolam v. Friern Hosp. Management Cttee., [1957] 1 W.L.R. 582; [1957] 2 All E.R. 118; [1955–95] P.N.L.R. 7, applied.

(2) Collins v. Wilcock, [1984] 1 W.L.R. 1172; [1984] 3 All E.R. 374; (1984), 79 Cr. App. R. 229, dicta of Robert Goff, L.J. considered.

(3) F (Mental Patient: Sterilisation), In re, [1990] 2 A.C. 1; [1989] 2 W.L.R. 1025, applied.

(4) T v. TELRWLRUNKFLR, [1988] Fam. 52; [1988] 2 W.L.R. 189; [1988] 1 All E.R. 613; [1988] 1 F.L.R. 400; sub nom. Re T (Abortion: Sterilization), [1988] Fam. Law 126, applied.

(5) W (E.E.M.), In re, [1971] Ch. 123; [1970] 3 W.L.R. 87; [1970] 2 All E.R. 502, dicta of Ungoed-Thomas J. considered.

Legislation construed:

Mental Health Law (1997 Revision), s.13:

‘In the case of-

(a) a patient under this Law; or

(b) a person in respect of whom the Grand Court has appointed a guardian under section 14 of the Grand Court Law (1995 Revision) and has thereafter found upon examination to be a person incapable of managing his own affairs,

the Grand Court may, with respect to the property and affairs of such person, do or securing the doing of all such things as appear desirable for the maintenance or benefit of such person . . .’

s.14: ‘In the exercise of its jurisdiction under section 13, the Grand Court may on behalf of a patient or person under guardianship-

(a) arrange for a person or persons to-

(i) manage, sell, acquire, charge or deal with property;

(ii) enter into any settlement;

(iii) provide for the management of a business;

(iv) dissolve a partnership;

(v) complete a contract;

(vi) conduct legal proceedings; and

(vii) act as trustee; or

(b) appoint a Receiver.’

Mental Health-medical treatment-consent-treatment of persons lacking mental capacity to consent lawful if in best interests-court has inherent jurisdiction to make declaration that proposed action lawful-to consider whether in accordance with practice accepted by responsible body of medical opinion skilled in particular form of treatment-for irreversible operations, good practice to seek advance declaration

The applicants sought various orders for the purpose of providing consent for the respondent”s surgery.

The applicants were the parents of the respondent-a 22-year-old with Down”s Syndrome. She had a complex congenital heart disease and was admitted to hospital on February 4th for associated respiratory and cardiac problems. Her attending physician recommended that she receive expedited cardiac surgery at Miami Children”s Hospital to attempt to correct or diminish some of these problems. On February 10th, he notified the applicants that he had formed the view that the respondent was not mentally competent to understand or consent to the complex surgery. The applicants were advised that hospitals in the United States required a guardian to sign consent forms for the admission and treatment of an adult with diminished mental capacity. It was not, however, until the applicants received a letter from the hospital on April 18th that they made the present application for, inter alia, orders that (i) they be granted temporary/interim guardianship of the respondent, pursuant to the Grand Court Law (2008

Revision), s.14 and the Grand Court Rules 1995 (Revised), O.80, rr. 28 and 29; and (ii) they could provide the required consent for her surgery, pursuant to the Mental Health Law (1997 Revision), ss. 13 and 14. As a result of the applicants” delay in proceeding with this application, it was ultimately brought in an ill-prepared and unsatisfactory manner.

Held, granting a declaration that the surgery could lawfully be performed without consent:

(1) The court had no jurisdiction under the Mental Health Law, ss. 13 and 14, to give consent to surgery on the respondent”s behalf. The court found she was incapable of managing her own affairs and would consequently make an order, pursuant to the Grand Court Law, s.14, appointing the applicants as her guardians, thereby engaging the Mental Health Law, s.13(b). Sections 13 and 14, however, only dealt with the powers of the Grand Court over the property of persons under guardianship-it was clear that this jurisdiction was limited to business matters, legal transactions and other dealings of a similar kind and did not extend to medical treatment (para. 15).

(2) The court would not express any concluded view as to whether the court”s residual parens patriae jurisdiction still existed. It observed that the English courts had held that the English Mental Health Act 1959 was intended to be comprehensive, thus leaving no inherent powers by which the court”s parens patriae jurisdiction could continue to operate. The Cayman Mental Health Law, however, was not so comprehensive and its effect on the court”s residual jurisdiction was therefore uncertain. In the light of this uncertainty, and the absence of any relevant submissions, the court would not decide the point (paras. 16–18).

(3) A declaration would be made that the operation would not amount to an unlawful act by reason only of the absence of consent. Although no application for such an order, pursuant to GCR, O.15, r.16, had been made, given the urgency of the matter, the court would consider its availability under its inherent jurisdiction. At common law, the medical treatment of persons incapable, by reason of mental incapacity, of consenting to it was lawful, provided the treatment was in their best interests. Whilst court involvement was not therefore strictly necessary, it was good practice in cases involving irreversible operations, e.g. sterilization. Its inherent jurisdiction empowered the court to make a declaration which established by judicial process that a proposed operation was in the best interests of a patient and therefore lawful; in making that determination, the court would consider, inter alia, whether the proposed operation was in accordance with practice accepted at the time by the responsible body of medical opinion skilled in the particular form of treatment. The court was satisfied on the medical evidence that it was in the respondent”s best interests to have the proposed surgery (para. 11; para. 19; para. 23).

1 WILLIAMS, J.: This is an ex tempore ruling, as the circumstances of the case make it imperative that there be an immediate decision. It will not read as neatly as a written ruling, but importantly it will enable the parties to know immediately at the close of this hearing the reasons for my decision.

Procedural background

2 MB and CB are the parents of the respondent, RB, now an adult aged 22 years. By an originating summons filed on the afternoon of Thursday, April 19th, 2012, the applicants seek the following orders:

(i) that they be granted temporary/interim guardianship of their daughter-it appears that is pursuant to s.14 of the Grand Court Law (2008 Revision) and O.80 of the Grand Court Rules 1995 (Revised);

(ii) that pursuant to ss. 13 and 14 of the Mental Health Law (1997 Revision) they may act, singly or jointly, for and on behalf of their daughter solely for the purposes of providing the required consent for and on her behalf in relation to the open-heart surgery scheduled for April 24th–25th, 2012, at Miami Children”s Hospital and/or any rescheduling thereof;

(iii) that they may act, singly or jointly, for and on behalf of their daughter in relation to any and all medical treatment which is required to be performed by any other medical facility in the continental United States;

(iv) that they be permitted to sign, singly or jointly, any and all documents necessary to accomplish the purposes set out in the above paragraphs;

(v) that the order remain in force for a period of one year; and

(vi) that there be liberty to apply.

3 This application has not been brought and presented in a manner that the court would ordinarily expect or accept when orders of this gravity are sought, especially when there is no local precedent dealing with the complex legal issues involved. There appear to be no case authorities emanating from the courts of the Cayman Islands on the question whether (and if so in what circumstances), as a matter of common law, medical treatment can lawfully be given to a person who is disabled by mental incapacity from consenting to it.

4 The first applicant”s affidavit discloses that she was notified on or around February 10th, 2012 by Dr. Courtney Cummings that he had formed the view that RB was not competent enough to understand the nature of her consent should heart surgery be required. It appears that she was told that there would be a threshold requirement for the applicants to have guardianship over RB”s medical affairs...