The Doctrine of Necessity and the Detention and Restraint of People with Intellectual Impairment: Is there Any Justification?

Abstract

AbstractIn Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation)Footnote1 and R v Bournewood Community and Mental Health NHS Trust, ex parte L,Footnote2 the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.Key words: detentiondisabilityintellectual impairmentnecessityrestraintrestrictive practicesView correction statement:Corrigendum Notes1. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.2. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458.3. Intellectual impairment is a term used here to include both intellectual disability and cognitive impairment. Intellectual disability is defined by the American Association on Intellectual and Developmental Disabilities (AAIDD) as 'characterised by significant limitation both in intellectual functioning and adapative behaviour as expressed in conceptual, social and practical skills, which are apparent prior to the age of 18'. AAIDD, 'Definition of Intellectual Disability' <http://wwww.aaidd.org> accessed 17 April 2015. Cognitive impairment refers to a loss of brain function that can express itself in a variety of conditions including Alzheimer's disease, dementia, autism, multiple sclerosis and acquired brain injury.4. Frances Owen and Dorothy Griffiths (eds), Challenges to the Human Rights of People with Intellectual Disabilities (Jessica Kingsley Publishers, London 2008). See also Office of the Public Advocate, 'People with Intellectual Disability or Cognitive Impairment Residing Long-term in Health Care Facilities: Addressing the Barriers to Deinstitutionalisation' (October 2013).5. Eric Emerson, Challenging Behaviour, Analysis and Intervention in People with Learning Difficulties (CUP 1995).6. 'Behaviours of concern' is an alternative term used to challenge the stereotypes and prejudices about people with disability and encourage a more holistic view about environmental and other reasons why people with disability may express behaviours that put themselves or others at risk of harm. See Jeffrey Chan and others, 'Is it Time to Drop the Term "Challenging Behaviour?"' (2012) 15 (5) Learning Disability Practice 36.7. Emerson (n 5).8. Ian Freckelton, 'Mental Health Law' in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (2nd edn, Thomson Reuters, Sydney 2014) 699–741.9. See Kim Chandler, Ben White and Lindy Willmott, 'Rethinking Restrictive Practices: A Comparative Analysis' (2014) 14 (2) QUT Law Review 90 for an examination of the legislative frameworks for restrictive practices in Australia.10. Nick O'Neil and Carmelle Pesiah, Capacity and the Law (Sydney Law Book Company, Sydney 2011) [7.5.8].11. O'Neil and Pesiah (n 10) [7.5.8]; DLH [2013] NSWGT 4 (17 April 2013); SDF [2013] NSWGT (17 January 2012). Indeed, in South Australia, the tribunal is authorised specifically to empower substitute decision-makers (and others) to detain and/or restrain a person with impaired capacity: Guardianship and Administration Act 1993 (SA) s 32.12. In Coco v The Queen (1994) 179 CLR 427 [435] Mason CJ, Brennan, Gaudron and McHugh JJ discussed the common law principle that express statutory authorisation, in unmistakable and unambiguous language, is required to engage in what would otherwise be tortious conduct.13. O'Neil and Pesiah (n 10) [7.5.8]; NSW Guardianship Tribunal, Position Statement: Behaviour Intervention and Support in Applications Relating to a Person With Intellectual Disability (2006) 4.14. Re Beth [2013] VSC 189; Re Thomas [2009] NSW SC 217.15. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (In re F).16. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 (R v Bournewood).17. See Queensland v Nolan [2002] 1 Qd R 454.18. 'Universal Declaration of Human Rights' GARES217A(III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948).19. 'International Covenant on Civil and Political Rights', opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).20. Human Rights Committee, International Covenant on Civil and Political Rights, 'General Comment No 35: Article 9: Liberty and Security of the Person' (107th session, Geneva, 11–28 March 2013) 3.21. Human Rights Committee (n 20) 4.22. Human Rights Committee (n 20) 2.23. Human Rights Committee (n 20) 2.24. Lexis Nexis, 'Liberty and Security of Persons' Introduction [80]–[100] Halsburys Laws of Australia (7 October 2011) 3; South Australia v Totani (2010) 242 CLR 1, 423 (Crennan and Bell JJ) citing Al Kateb v Godwin (2004) 219 CLR 562, 577 (per Gleeson CJ).25. Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 [86] (Black CJ, Sundberg and Winberg JJ) quoting Minister for Immigration & Multicultural Affairs v VFAD of 2002 (2003) 196 ALR 111 [108]–[112].26. Wayne Morrison (ed), Blackstone's Commentaries on the Laws of England (vol 1, Cavendish 2001) 101.27. Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 74, 79 (Isaacs J).28. Magna Carta 1297 (Imp) cl 39.29. Antunovic v Dawson (2010) 30 VR 355 [25]–[28] (Bell J). Bell J identified these statutes as in force here to specified extent. These include for example the Magna Carta 1297 (25 Edward 1, cl39); Bill of Rights 1688 (1 William and Mary, ss11, cl11); Petition of Right 1627 (3 Charles 1, cl10); and various Habeas Corpus Acts which are in force in Australian states and territories by virtue of various application acts and reception acts.30. Antunovic v Dawson (2010) 30 VR 355 [25] (Bell J).31. Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 74, 79 (Isaacs J).32. Collins v Wilcock [1984] 1 WLR 1172, 1177 (Goff LJ).33. Malette v Shulman [1990] 67 DLR (4th) 321, 336 (Robins JA).34. Lexis Nexis (n 24) [80]–[100].35. Antunovic v Dawson (2010) 30 VR 355.36. Watson v Marshall & Cade (1971) 124 CLR 426.37. See for example Criminal Code (Qld) s 355; Criminal Code (WA) s 333; Criminal Code (NT) s 196; Crimes Act 1958 (Vic) s 31.38. Collins v Wilcock [1984] 1 WLR 1172.39. See for example Criminal Code (Qld) s 335; Criminal Code (WA) s 333; Criminal Code (NT) s 188; Crimes Act 1900 (NSW) s 61; Crimes Act 1958 (Vic) s 31; Criminal Code Act 1924 (Tas); Criminal Law Consolidation Act 1935 (SA) s 20.40. Criminal Code Act 1995 (Cth) s 10(4); Criminal Code 2002 (ACT) s 42; Crimes Act 1900 (NSW) ss 418–423; Criminal Code Act 1983 (NT) s 29; Criminal Code (Qld) ss 271–273; Criminal Law Consolidation Act 1935 (SA) s 15; Criminal Code (TAS) s 46; Criminal Code Act Compilation Act 1913 (WA) s 248; Crimes Act 1958 (Vic) ss 322K–322M.41. Fontin v Katapodis (1962) 108 CLR 177.42. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 [661] (Wilson, Dawson, Toohey JJ); R v Howe (1958) 100 CLR 448 [460] (Dixon CJ).43. McClelland v Symons [1951] VLR 157.44. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72 (Lord Goff); Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 [31] (McDougall J); Rogers v Whitaker (1992) 175 CLR 479, 489 (Mason CJ, Brennan, Dawson, Toohey JJ).45. Ben White, Lindy Willmott and Shih-Ning Then, 'Adults who Lack Capacity: Substitute Decision-making' in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (2nd edn, Thomson Reuters, Sydney 2014) 193–253 [7.180].46. Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 [31] (McDougall J).47. Reniger v Fogossa (1552) 1 Plowd 1.48. Mouse's Case (1609) 77 ER 1341.49. Morgentaler v the Queen [1976] 1 SCR 616, 676 (Dickson J).50. Michael Hoffheimer, 'Codifying Necessity: Legislative Resistance to Enacting the Choice-of-Evils Defenses to Criminal Liability' (2007) (82) 19 Tulane Law Review 191. Hoffheimer describes the failed attempts at the codification of a general defence of necessity based on the Model Penal Code in the United States. See In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 where Brooke LJ describes the failed attempts at codification of a general defence in the United Kingdom since the early nineteenth century [222]–[223] and the Law Commission between 1974 and 1993 [225]–[228].51. R v Shayler [2001] 1 WLR 2206, 2223 (Lord Wolf CJ).52. R v Conway [1989] 1 QB 290; Police v Kawiti [2000] 1 NZLR 117.53. R v Martin (Colin) [1989] 1 All ER 652 [653]–[654] (Simon Brown J).54. Taipa v the Queen (2009) 240 CLR 95 [36].55. Hoffheimer (n 48) 191, 205; R v Howe [1987] AC 417, 419.56. R v Shayler [2001] 1 WLR 2206; In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147.57. R v Loughnan [1981] VR 443.58. R v Davidson [1969] VR 667, 670 (Menhennit J); R v Loughnan [1981] VR 443, 448 (Young CJ, King J); R v Abdul v Hussein [1999] Crim LR 57 (Rose LJ).59. Southwark LBC v Williams [1971] Ch 734, 746 (Davies LJ); R v Loughnan [1981] VR 443, 448 (Young CJ, King J).60. R v Martin (Colin) [1989] 1 All ER 652, 653–54 (Simon Brown J).61. R v Shayler [2001] 1 WLR 2206, 2228 (Lord Wolf CJ); R v Loughnan [1981] VR 443, 448 (Young CJ and King J).62. R v Shayler [2001] 1 WLR 2206, 2226 (Lord Wolf CJ).63. Hoffheimer notes that the majority of states in the United States have refused to codify a general form of the defence and that 17 out of 19 states that do codify it impose additional requirements such as imminent harm: Hoffheimer (n 50) 191.64. George Fletcher, Rethinking Criminal Law (OUP 2000) 789; Perka v the Queen [1984] 2 SCR 232, 246 (Dickson J); George P Fletcher, 'The Individualization of Excusing Conditions' (1973–74) 47 Southern California Law Review 1269.65. Fletcher, Rethinking Criminal Law (n 64) 789; Perka v the Queen [1984] 2 SCR 232, 246 (Dickson J); Itzhak Kugler, 'Necessity as a Justification in Re A (Children)' (2004) 68 (5) Journal of Criminal Law 440, 442.66. Perka v the Queen [1984] 2 SCR 232.67. Perka v the Queen [1984] 2 SCR 232, 246 (Dickson J).68. Perka v the Queen [1984] 2 SCR 232, 249 (Dickson J).69. Morgentaler v the Queen [1976] 1 SCR 616, 678 (Dickson J).70. Perka v the Queen [1984] 2 SCR 232, 250 (Dickson J).71. Aristotle, The Nicomachean Ethics Book III (D Ross tr, 1975) 49 quoted in Perka v the Queen [1984] 2 SCR 232, 241 (Dickson J).72. Francis Bacon, Francis Bacon's The Elements of the Common Lawes of England (1630) (Garland Publishing, New York 1978) quoted in Hoffheimer (n 50) 191, 201.73. Bacon (n 72) 191, 201.74. Thomas Hobbes, Leviathan Pt II (1651) (Pelican, 1968) 157 quoted in Perka v the Queen [1984] 2 SCR 232, 241 (Dickson J).75. Perka v the Queen [1984] 2 SCR 232, 248 (Dickson J).76. Perka v the Queen [1984] 2 SCR 232, 250 (Dickson J).77. Perka v the Queen [1984] 2 SCR 232, 251 (Dickson J).78. Perka v the Queen [1984] 2 SCR 232, 251 (Dickson J).79. Kugler (n 63) 440, 442.80. Perka v the Queen [1984] 2 SCR 232, 243 (Dickson J).81. Fletcher, 'The Individualization of Excusing Conditions' (n 64) 1269, 1274.82. Perka v the Queen [1984] 2 SCR 232.83. Perka v the Queen [1984] 2 SCR 232; Morgentaler v the Queen [1976] 1 SCR 616.84. Perka v the Queen [1984] 2 SCR 232, 274 (Wilson J).85. Perka v the Queen [1984] 2 SCR 232, 252 (Dickson J).86. R v Shayler [2001] 1 WLR 2206, 2228 (Lord Wolf CJ).87. In R v Bourne [1939] 1 KB 687 McNaughten J arguably imported the concept of necessity as a general defence when at the time that there was no defence of a therapeutic abortion. McNaughten J found the word 'unlawfully' with respect to the offence of unlawfully procuring a miscarriage, imported provisions found elsewhere in the Act. The Infant (Preservation) Act 1929 section (1)(1) also provided that no person would be guilty of an offence if they acted in good faith and for the purpose of preserving the life of the mother. While Brooke LJ puts forward this as an example of the utilisation of the broad general defence in In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (at 231), in Morgentaler v the Queen [1976] 1 SCR 616 Dickson J argued (at [678]–[680]) that the judge had not expressly relied on the defence of necessity and further that he thought this doubtful authority for the general defence given the uniqueness of the facts and law in R v Bourne.88. Southwark London Borough Council v Williams [1971] 1 Ch 734, 746 (were Edmund Davies LJ said that as far as his reading goes 'it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril'); R v Martin (Colin) [1989] 1 All ER 652 (where Simon Brown J said that imminent peril of death or serious injury was an essential feature of the defence); R v Shayler [2001] 1 WLR 2206, 2228 (where Wolf LJ stated that after reviewing the authorities that except for some of the medical cases the way to reconcile the authorities was that the defence is available where the defendant commits an otherwise criminal act to avoid an imminent peril or danger to life or serious injury).89. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458; In re F (Adult: Court's Jurisdiction) [2001] Family Division Reports 338; Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1.90. Re F (Adult: Court's Jurisdiction) [2001] Family Division Reports 338 (Butler-Sloss LJ); Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1.91. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 12 (Lord Donaldson MR).92. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 71 (Lord Goff).93. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 71.94. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 74 (Lord Goff).95. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 52 (Lord Bridge).96. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 55 (Lord Brandon) 69 (Lord Griffiths) 75 (Lord Goff).97. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 75 (Lord Goff).98. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 78 (Lord Goff).99. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.100. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458.101. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, 495 (Lord Steyn).102. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458. 486 (Lord Goff found that L had not been detained) 490 (Lord Lloyd concurred with Lord Goff) 492 (Lord Nolan found that L had been detained) 495 (Lord Steyn found that L had been detained).103. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, 488 (Lord Goff) 490 (Lord Lloyd) 492 (Lord Nolan) 497 (Lord Steyn). Ultimately in HL v United Kingdom (2004) 40 EHRR 761 the European Court of Human Rights did find L's right to liberty had been violated and that neither access to judicial review or the common law doctrine of necessity provided sufficient procedural safeguards in accordance with article 5 of the European Convention on Human Rights.104. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, 488 (Lord Goff).105. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, 489 (Lord Goff).106. The Mental Capacity Act 2005 (UK) came into force in 2007.107. The Deprivation of Liberty also in provided for to be in the of not by the Mental Health Act who of in or the in HL v United Kingdom (2004) 40 EHRR 761 that there was a of to In Re F (Adult: Court's Jurisdiction) [2001] Fam (Butler-Sloss In Re F (Adult: Court's Jurisdiction) [2001] Fam In Re F (Adult: Court's Jurisdiction) [2001] Fam (Butler-Sloss See for example In re (Adult: of Fam S (Hospital Patient: Court's Jurisdiction) WLR (Mental Patient: 1 Mental 1 In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam Lords Brooke and in of the common law defence of necessity as justification for the LJ at and LJ at with LJ on the of faced by the and the of the law to the of (at In this the of the was and application of the In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam LJ); LJ); In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 240 In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam In In Re F Lord Goff had stated that the of emergency was that it may to a necessity to act in the of the person that it was not the or (In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 75 (Lord R v Shayler [2001] 1 WLR 2206, 2228 (Lord Wolf 'The of and Journal of Law and Criminal Code (NT) s Criminal Code (Qld) s Criminal Code (WA) s Criminal Code 2002 (ACT) s Crimes Act 1958 (Vic) s Queensland to the section in the R v Loughnan [1981] VR R v Loughnan [1981] VR O'Neil and Pesiah (n 10) Watson v Marshall & Cade (1971) 124 CLR v v v ER Watson v Marshall (1971) 124 CLR Re 40 Watson v Marshall & Cade (1971) 124 CLR Watson v Marshall & Cade (1971) 124 CLR v Lord at Lord Griffiths at v of New South Hunter and New England Area Health Service (2009) 74 NSWLR 88 [31] (McDougall Rogers v Whitaker (1992) 175 CLR 479, 489 (Mason CJ, Brennan, Dawson, Toohey and McHugh of Health and Community v & (1992) 175 CLR Queensland v Nolan [2002] 1 Qd R In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam the of Twins: A and Criminal Law (2010) 17 Journal of Law and Queensland v Nolan [2002] 1 Qd R Queensland v Nolan [2002] 1 Qd R Queensland v Nolan [2002] 1 Qd R Criminal Code (Qld) s Queensland v Nolan [2002] 1 Qd R In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam Criminal Code (Qld) s Queensland v Nolan [2002] 1 Qd R Perka v the Queen [1984] 2 SCR 232, (Wilson Queensland v Nolan [2002] 1 Qd R Perka v the Queen [1984] 2 SCR 232, 248 (Dickson Perka v the Queen [1984] 2 SCR 232, 248 (Dickson Simon Journal of (n Fletcher, Rethinking Criminal Law (n 64) Fletcher, Rethinking Criminal Law (n 64) Morgentaler v the Queen [1976] 1 SCR 616, 678 (Dickson In re F (Mental Patient: Sterilisation) [1990] 2 AC R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 71 (Lord Rights Rights (n See Chandler, White and Willmott (n Queensland Law A Review of Guardianship Laws Law Guardianship Michael and in (2014) Journal of Law and While the have this the is a term by In in the concept of law as integrity, a of law which that people have legal that from and that they are to a and of where about what this See Fletcher, 'The Individualization of Excusing Conditions' (n 64) 1269, Fletcher, 'The Individualization of Excusing Conditions' (n 64) 1269, Fletcher, 'The Individualization of Excusing Conditions' (n 64) 1269, (n of (1987) Journal of Southwark London Borough Council v Williams [1971] Ch Southwark London Borough Council v Williams [1971] Ch 734, (Lord Southwark London Borough Council v Williams [1971] Ch 734, (Lord Southwark London Borough Council v Williams [1971] Ch 734, (Lord Southwark London Borough Council v Williams [1971] Ch 734, (Lord Fletcher, Rethinking Criminal Law (n 64) Fletcher, 'The Individualization of Excusing Conditions' (n 64) 1269, Fletcher, 'The Individualization of Excusing Conditions' (n 64) 1269, Rights (n v Bell 274 J v Bell v Law Review Re 2 SCR 'The of with Intellectual A at the of Law Review (n (n v Bell 274 v Bell 274 In his The Common that the legal by which are to be do not with or of the the and of or the prejudices which with the view of the common law was that 'it and itself to the social as a of judicial that are legislative in not on of See and Nexis, 2013) R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, (Lord (n Morgentaler v the Queen [1976] 1 SCR 616, 678 (Dickson Perka v the Queen [1984] 2 SCR 232, 274 (Wilson Perka v the Queen [1984] 2 SCR 232, (Wilson In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam Queensland v Nolan [2002] 1 Qd R (n for a justification is an to this that where otherwise a right to the by the that is that judicial to such a right may be to where the right in is in law for (n In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 243 LJ); R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, 488 (Lord Goff) 490 (Lord In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 78 (Lord of Health and Community v & (1992) 175 CLR (Mason CJ, Dawson, Gaudron of Health and Community v & (1992) 175 CLR (Mason CJ, Dawson, Gaudron of Health and Community v & (1992) 175 CLR J); Ian and Human Rights' in and (eds), Human Rights for the Political and (n In In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, the House of Lords that the of the person for medical is be by to whether the acted accordance with a and of This is what is as the in the in the medical of Bolam v Friern Hospital Management Committee [1957] 1 have this approach as the of to the medical and the Capacity and the of (CUP (n Re A Sterilisation) [2000] 1 (Butler-Sloss also In re S Patient: Sterilisation) [2001] Fam 15; R v Council (n also Law Mental No Re A Sterilisation) [2000] 1 The approach essentially the of a with of and of the of the or loss that is and if the is in the judge as in Re A Sterilisation) [2000] 1 This approach was in a and has been in a variety of cases including cases of life for example In re of and Council v P 1 AC P and v Council and Council v P HL v United Kingdom 40 EHRR and Council v P 1 AC and Council v P 1 AC and Council v P 1 AC and Council v P 1 AC and Council v P 1 AC R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, 492 (Lord HL v United Kingdom 40 EHRR 761 HL v United Kingdom 40 EHRR 761 the of in Australian the of Human Rights and Act (Vic) and the Human Rights Act See Queensland v Nolan [2002] 1 Qd R (n See Chandler, White and Willmott (n The Common quoted in (n (n