Williams J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN CAUSE NO. 202 OF 2012 BETWEEN: MB & CB v RB Appearance: Mr. Jamal Young on behalf of the Applicants Before: Hon. Justice Williams Heard: 23rd April 2012 HEADNOTE Trespass – Person – Battery – Surgical operation on mentally handicapped adult – Adult unable to consent to open heart surgery – Whether Operation without consent justified – Operation considered to be in adult’s best interests – Whether jurisdiction in court to approve operation being performed - Jurisdiction of court to grant declaration as to validity of proposed medical operation – Procedure to apply when applying for a declaration - Whether Section 13 and Section 14 of the Mental Health Law confer jurisdiction on the Court to decide questions relating to medical treatment. EX TEMPORE RULING
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
MB & CB are the parents of the Respondent, RB (DOB 20th February 1990), an adult aged 22 years. By an Originating Summons filed on the afternoon of Thursday, 19th April 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 s.13 and s.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 24th – 25th April 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.
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, as a matter of common law (and if so in what circumstances), medical treatment can lawfully be given to a person who is disabled by mental incapacity from consenting to it.
The First Applicant’s affidavit discloses that she was notified on or around 10th February 2012 by Dr. Courtney Cummings that he had formed the view that Raquel 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 as they related to the surgery prior to the surgery being performed. It appears that the Applicants did very little thereafter to act upon this advice. It appears that only after they received a letter from Miami Children's Hospital on 18th April 2012 confirming that RB would need to report at the hospital on 24th April 2012 that anything has been done to bring this application before the Court. The inevitable consequence is that the application has been brought in a hurried, ill-prepared and unsatisfactory manner. The form of the application is defective and the Court has no jurisdiction to make the orders sought in the Summons pursuant to the statutory provisions relied upon. Not one case authority has been placed before the Court by Counsel and therefore all the relevant case law referred to herein had to be researched and provided by the Court to the Applicants’ attorney. When the supporting affidavit was filed on Thursday afternoon on 19th April 2012 it exhibited no medical evidence indicating why RB was not competent to understand the nature of her consent and/or why the proposed surgery is necessary and in her best interests. On perusing the papers, due to the evident urgency of the matter, I had to have a message sent to the Attorney highlighting this deficiency and requiring such information to be placed before me. On Friday, 20th April 2012 the Court chased up the attorneys to see if this application was going to be made. It is only this morning, Monday, 23rd April 2012, that the Court heard that the application is to move forward and the Court received the undated affidavit of Dr. Cummings – the affidavit will need to be dated and I require an undertaking from Counsel that that be done.
The manner of the application has left the Court in an invidious position, especially having regard to the subject matter of the application and the need for an immediate decision. Counsel appears before me with the affidavit of Dr. Cummings at 10:30 a.m., his clients due to fly out with RB at 12:50 p.m. today, with surgery scheduled for tomorrow. The Court would have been entitled to refuse to hear the matter today, requiring Counsel to go away and file a properly drafted summons and to adequately prepare thus enabling an informed presentation of the application. However, that approach would not have been feasible, as the urgent and complex surgery is proposed to be carried out tomorrow and his clients are due to fly out in about an hour and half from now.
I will, in light of my concerns, at a later stage in this ruling set out the recommended procedure for this type of application if made in the future. Background
RB unfortunately has Down's Syndrome. The medical evidence now before me is set out in Dr. Cumming’s affidavit. Dr. Cummings is the attending physician of RB in the Cayman Islands after she was admitted on 4th February 2012 suffering from respiratory and cardiac complications. He recommended that she receive expedited treatment at Miami Children’s Hospital.
Surgery is required to attempt to correct or diminish some of these irregularities which include: a) closing a hole in the middle of her heart and inserting a valve; b) creating a conduit for blood flowing from the lower left ventricle and inserting a valve; c) completely closing a partial hole in the upper part of her heart; d) opening up restricted pathways of arteries leading from the heart to the two lungs; and e) removing scar tissue.
Dr Cummings is of view that RB is not mentally competent to understand or consent to the complex cardiac surgery. It is contended that RB’s mother has been advised that in the USA the hospital requires for an adult who has diminished mental capacity a guardian to sign consent forms for admission and treatment at facilities in the USA. Even as I deliver this ruling a letter is arriving attached to an email from the hospital. Excuse me as I pause to read the letter. I note that the letter from Denise Valor, Licensed Clinical Social Worker, at Miami Children’s Hospital, confirms that under Florida Law a guardian must consent and that the surgery is needed as RB has a complex congenital heart disease.
I am satisfied having regard to s.14 Grand Court Law and O.80 r.28 and r.29 that it is appropriate to appoint the Applicants as guardians for RB to handle her affairs. I find that she is incapable of managing her own affairs. I make that order.
I am satisfied on the medical evidence that RB is mentally incapable of herself reaching a considered decision on whether or not this operation should be carried out.
I am satisfied that it is in RB’s best interest to have the operation.
However, that is not the end of it. If RB were a minor the matter could be dealt with by making her a Ward of Court and then exercising the Court’s jurisdiction to decide whether the operation was in her best interests, which would be the paramount consideration.
I am now required to consider whether the decision about the surgery can be taken on her behalf and if it can then by whom, under what legal power, and by what procedure. Can the Court give consent to surgery on behalf of an adult who is permanently disabled by mental incapacity from giving consent in person? Lord Brandon of OakBrook in the House of Lords decision of re F. (Mental Patient: Sterilisation) 2 AC 1 at 54 paragraph C set out these three questions of law and legal procedure that needed to be considered: "The first question is whether it is necessary or desirable for the court to become involved in the matter at all. The second question is, if so, what jurisdiction does the court have to deal with the matter, and according to what principles should that jurisdiction be exercised. The third question is, assuming that the court has jurisdiction and is bound to exercise it in a particular manner, what procedure should be used for the invocation and subsequent exercise of that jurisdiction." I will address these three points later herein.
His Lordship went on to say at page 54, paragraph H: "For reasons which will become apparent later, no court or judge has now any jurisdiction with respect to the person of an adult under mental disability comparable with the wardship jurisdiction of the High Court with respect to the person of a minor in a similar condition. Because of this, no ready answers are available to the three questions referred to above in the case of such an adult, and a separate examination of them has to be made." The Law
The starting point is that any intentional touching of an adult body, however slight is prima facie tortious if it occurs without his consent. Under an established common law rule ("the consent rule") it is both tortious and criminal to perform acts such as surgical operations on the body of an adult without his or her consent, the tort law offence being that of a form of trespass to the person known as battery.
In Collins v Wilcock (1984) 1 WLR 1172 at 1177 Robert Goff LJ stated: "The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in Cole v Turner (1704) 6Mod. 149 that 'the least touching of another in anger is a battery.' The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), a Vol. 3, p. 120: 'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.' The effect is that everybody is protected not only against physical injury but against any form of physical molestation."
However, there are instances where patients are unable to give or refuse their consent to an operation, for example when urgent treatment is required and the patient is unconscious and any delay would be damaging to his health.
Lord Brandon of Oakbrook at page 55 D outlined a further example as being: ".... Where a patient, though adult, cannot by reason of mental disability understand the nature or purpose of operation or other treatment."
He went on to say that in such circumstances: "The common law would be seriously defective if it failed to provide a solution to the problem created by such inability to consent. In my opinion, however, common law does not so fail. In my opinion, the solution to the problem which the common law provides is that a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interest of such patients. The operation or other treatment will be in their best interest if, but only if, it is carried out in order either to save their lives, or (as is RB's case) to ensure improvement or prevent deterioration of their physical or mental health."
His Lordship continued: "In my opinion, the principle is that, when persons lacked the capacity, for whatever reason, to take decisions about the performance of operations on them, or the giving of other medical treatment to them, it is necessary that some other person or persons, with the appropriate qualifications, should take such decisions for them. Otherwise they would be deprived of medical care which they need and to which they are entitled. In many cases, however it will not only be lawful for doctors, on the ground of necessity, to operate on or give other medical treatment to adult patients disabled from giving their consent; it will also be their common law duty to do so."
At page 56 paragraph B he added: "In the case of adult patients suffering from mental disability, they will normally, in accordance with the scheme of the Mental Health Act 1983, be either in the care of guardians, who will refer them to doctors for medical treatment, or of doctors at mental hospitals in which the patient either reside voluntarily or are detained compulsorily. It will then again be the duty of the doctors concerned to use their best endeavours to do, by way of either an operation or other treatment, that which is in the best interests of such patients." The application of the principle which I have described means that the lawfulness of operating on, or giving other treatment to, an adult patient disabled from giving consent, will depend not on any approval or sanction of the court, but on the question whether the operation or other treatment is in the best interests of the patient concerned. That is, from a practical point of view, just as well, for, if every operation to be performed, or other treatment to be given, required the approval or sanction of the court, the whole process of medical care to such patients would grind to a halt."
Lord Jauncey of Tullichettle at page 83 paragraph G in re F. shared the sentiments of Lord Brandon of Oakbrook stating: "I should only like to reiterate the importance of not erecting such legal barriers against the provision of medical treatment for incompetence that they are deprived of treatment which competent persons could reasonably expect to receive in similar circumstances. The law must not convert incompetents into second-class citizens for the purposes of health care. There are four stages in the treatment of a patient, whether competent or incompetent. The first is to diagnose a relevant condition. The second is to determine whether the condition merits treatment. The third is to determine what the merited treatment should be. The fourth is to carry out the chosen form of merited treatment. In the case of a long-term incompetent, convenience to those charged with his care should never be a justification of the decision to treat. However, if such persons take the decision in relation to the second and third stages (supra) solely in his best interest and if their approach to and execution of all four stages is such as would be adopted by responsible body of medical opinion skilled in the particular field of diagnosis and treatment concerned, they will have done all that is required of them and the acting will not be subject to challenge as being unlawful."
It therefore appears that the involvement of the Court is not strictly necessary as a matter of law. It is necessary and good practice in cases involving irreversible operations such as sterilisation. Lord Griffiths at page 68 G in re F. indicated that, in cases involving operations, the sterilisation should be approved by the High Court but such a process was not required for the treatment of diseased organs. However, I am not critical of the fact that such an application comes before me where the surgery is as major as that involved in this matter, namely open-heart surgery.
Having dealt with the first question, namely whether it is desirable for the Court to get involved, I move on to the second question concerning the jurisdiction of the Court and the principles upon which it should be exercised.
The primary submission made on behalf of the Applicants, and the only ground set out in the Summons before me, is that the Court has jurisdiction pursuant to s.13 and s.14 of the Mental Health Law (1997 Revision). However, it is clear on the authorities from England and Wales that the Court does not have such jurisdiction.
In T V T and Another (1988) Fam 52, Wood J held that there was no power for anyone to give consent for the operations on behalf, in that case, of a 19-year-old severely mentally handicapped woman with a mental age of about three under the provisions of the Mental Health Act 1983. Part VII of that Act is headed "Management of Property and Affairs of Patient." Section 95 gives the judge the power to make orders "with respect to the property and affairs of a patient." Wood J noted at page 57 paragraph H that this phrase was considered in Re W (E.E.M) [1971] Ch. 123. by Ungoed-Thomas J who stated at page 143: "So my conclusion is, in particular with regard to legal proceedings, including divorce proceedings, that the Court of Protection is not limited in its jurisdiction to dealing with a patient's property or financial affairs, nor limited to dealing with such other matters as maybe within its jurisdiction in their property or financial aspects, but that it has exclusive jurisdiction over all the property and all the affairs in all the aspects but not to the management or care of the patient's person." (my emphasis)
Lord Brandon of Oakbrook also considered the same issue of jurisdiction under paragraphs 93 to 96 Part VII of the Mental Health Act 1983 in re F. His Lordship concluded at page 59 paragraph E: "The expression 'the affairs of patients,' taken by itself without regard to the context in which it appears, is, in my view, capable of extending to medical treatment of patients other than treatment for the mental disorder. There is further an obvious attraction in construing that expression, as used in Part VII of the Act of 1983, as having that extended meaning ("the wider meaning"), since there would be a judicial authority, namely, a judge nominated under section 93 (1), who would have statutory power to authorise, or refuse to authorise, the sterilisation of an adult woman of unsound mind such as F. There are two passages in the sections of the Act set out above, if they do not expressly support the wider meaning, or be at least consistent with it. The first is the passage in section 95 (1) (a) "for the maintenance or other benefit of the patient" (my emphasis). The second is the passage in section 96 (1) (k) "the exercise of any power (including a power to consent) vested in the patient, whether beneficially, or as guardian or trustee, or otherwise" (again my emphasis). It seems to me, however, that, when one examines the general tenor of Part VII of the Act, and more particularly the context in which the two passages referred to above are to be found, the expression "the affairs of patients" cannot properly be construed as having a wider meaning. It must rather be construed as including only business matters, legal transactions and other dealings of a similar kind. I would, therefore, hold that Part VII of the Act of 1983 does not confer on a judge nominated under section 93 (1) any jurisdiction to decide questions relating to the medical treatment of a patient, such as the question of F’s sterilisation in the present case."
S.13 and s.14 of the Cayman Islands Mental Health Law use similar wording. The note in the margin for s.13 shows that this section is dealing with the jurisdiction of the Grand Court over the property of patients and persons under guardianship. The note in the margin for s.14 states that the section is dealing with the powers of the Grand Court exercising jurisdiction under s.13. That section set out what the Court may do on behalf of a patient or person under guardianship. It is clear that the jurisdiction is limited to business matters, legal transactions and other dealings of a similar kind and not to medical treatment of a patient or a person in respect of whom a guardian has been appointed under s.14. I therefore find that s.13 and s.14 of our Mental Health Law do not confer on the Grand Court any jurisdiction to decide questions relating to the medical treatment of a patient, such as the question of RB’s operation in the matter before me.
It has not been pleaded or argued before me whether jurisdiction derives from the Parens Patriae jurisdiction. Despite this, I do briefly consider the same. In the absence of any informed submissions made before me concerning the position in the Cayman Islands, I find I am assisted by Lord Brandon of Oakbrook’s learned deliberations at page 57 paragraph D in re F. when he says: "There is an ancient prerogative jurisdiction of the Crown going back as far perhaps as the 13th century. Under it the Crown as parens patriae had both the power and the duty to protect the persons and property of those unable to do so for themselves, a category which included both minors (formerly described as infants) and persons of unsound mind (formerly described as lunatics or idiots). While the history of that jurisdiction and the manner of its exercise from its inception until the present day is of the greatest interest, I do not consider that it would serve any useful purpose to recount it here. I say that because it was accepted by the Court of Appeal and not challenged by any of the parties to the appeal before your Lordships, that the present situation with regard to the parens patriae jurisdiction was as follows. First, so much of the parens patriae jurisdiction as related to minors survives now in the form of the wardship jurisdiction of the High Court, Family Division. Secondly, so much of the parens patriae jurisdiction as related to persons of unsound mind no longer exist. It ceased to exist as a result of two events both of which took place on one November 1960. The first event was the coming into force of the Mental Health Act 1959, Section 1 of which provided: "subject to the transitional provisions contained in this Act, the Lunacy and Mental Treatment Acts, 1890 to 1930, and the Mental Deficiency Acts, 1913 to 1938, shall cease to have effect, and the following provisions of this Act shall have effect in lieu of those enactments with respect to the reception, care and treatment of mentally disordered patients, the management of their property, and other matters related thereto." The second event was the revocation by warrant under the Sign Manual of the last Warrant dated 10 April 1956, by which the jurisdiction of the Crown over the persons and property of those found to be of unsound mind by Inquisition had been assigned to the Lord Chancellor and the judges of the High Court, Chancery Division.¹ The effect of section 1 of the Act of 1959, together with the Warrant of revocation referred to above, was to sweep away the previous statutory and prerogative jurisdiction in lunacy, leaving the law relating to persons of unsound mind to be governed solely, so far as statutory enactments are concerned, by the provisions of that Act. So far as matters not governed by those provisions are concerned, the common law relating to persons of unsound mind continued to apply. It follows that the parens patriae jurisdiction with respect to persons of unsound mind is not now available to be invoked in order to involve the court or judge in the decision about the sterilisation of F."
The 1959 Act in England was intended to be comprehensive, thus leaving nothing on which prerogative powers in relation to mentally disordered persons could continue to operate. In T v T at page 58 paragraph H Wood J expressed regret that the warrant had been revoked when he stated: ¹ The 1959 act was brought in brought fully into force on 1 November 1960, 11 days later the following notice appeared in the London Gazette at page 7631: "having regard to the provision made in the mental health act 1959 with respect to the management of the property and affairs of mentally disordered persons, the Queen has been pleased by Warrant under Her Majesty's Royal Sign Manual, bearing date the 1st instant, to revoke the Warrant under the Royal Sign Manual dated the 10 April 1956, entrusting the Lord Chancellor and certain other judges of the Supreme Court of judicature with jurisdiction respecting the caring commitment to the custody of persons of unsound mind and their estates." "The facts of this case illustrate the usefulness and indeed, may I respectfully suggest, the necessity for a residual jurisdiction even when codification purports to cover every eventuality. The simplest remedy would be to issue a fresh warrant restoring this common law jurisdiction."
In the vacuum of informed or in fact any submissions from Counsel on this issue, it would be inappropriate for me to express any concluded view as to whether the Crown's residual prerogative power still exists in the Cayman Islands in such circumstances as this case. Our Mental Health Law, which is in dire need of updating, is not as comprehensive as the similar legislation in England and Wales. In light of this uncertainty concerning the parens patriae jurisdiction, I feel it necessary to consider whether there is any other possible jurisdiction grounding the Court's involvement in this matter.
No application has been made for an order under O.15 r.16 Grand Court Rules for a declaration that the operation would not amount to an unlawful act by reason only of the absence of RB's consent. Despite this, I am of the view that I can consider whether it would be appropriate to make a declaration pursuant to my inherent jurisdiction. I do so as a decision is required so urgently. The issue as to whether consent can be given by declaration has until the House of Lords' decision in re F., been open to debate.
In T v T it was held that it was in the best interests of the Defendant that she should receive surgical treatment without delay and in the exceptional circumstances, the medical advisers were justified in performing the operation without express or implied consent and that, accordingly, the Court would exercise its discretion to grant a declaration notwithstanding that it related to a future event. The declaration was given in the following terms: "it is declared that: (i) to effect a termination of the pregnancy of the first defendant; (ii) to deal with any complications that might arise in the course of the said termination of pregnancy, whether by hysterotomy or otherwise, and: (iii) to effect the sterilisation of the first defendant; would not in any such case amount to an unlawful act by reason only of the absence of the first defendant's consent;
Wood J stated at page 67 paragraph G that: "The incision made by the surgeon's scalpel need not be and probably is most unlikely to be hostile, but unless a defence or justification is established it must in my judgment fall within the definition of a trespass to the person. Thus in the present case I must face the fact that the operative procedures proposed are prima facie acts of trespass. It would be wholly unrealistic on the facts of this case to think in terms of any implied consent. I am convinced, as are all the lay and professional persons involved in this case, that it is in the best interests of the first defendant that these procedures should be carried through and I have made the declarations which was sought. I am content to rely upon the principle that in these exceptional circumstances where there is no provision in law for consent to be given and therefore there is no one who can give their consent, and where the patient is suffering from such mental abnormality as never to be able to give such consent, a medical adviser is justified in taking such steps as good medical practice "demands" in the sense that I have set out above and on that basis it is that I have made the declaration is sought."
In re F. the Court of Appeal indicated that for future cases a declaration should not be regarded as the appropriate remedy. The Court of Appeal appeared to express a view that the court has no power to grant a declaration that the doctor will not be liable for trespass if he operates on a patient without either her consent or the consent of a person legally authorised to give consent in respect of the patient. Also they appeared to suggest that a declaration can be made only in respect of a legal right, and no such right is known to the law.
Lord Donaldson MR, sitting in the Court of Appeal, said: "a declaration changes nothing. All that the court is being asked to do is to declare that, had a course of action been taken without resort to the court, it would have been lawful anyway."
Butler-Sloss LLJ concurred and added: "a declaration cannot alter the existing position... The court by a declaration alone cannot give approval."
The House of Lords found in re F. that the declaration procedure, although criticised by the Court of Appeal, was the appropriate and satisfactory procedure. Lord Brandon of Oakbrook stated at page 63 paragraph F that it was not right to describe this jurisdiction as being under Order 15 r.16. His Lordship said that the jurisdiction was part of the inherent jurisdiction of the High Court, and the rule does no more than say that there is no procedural objections to an action being brought to a declaration whether any other kind of relief asked for is available. He concluded on page 63 paragraph G: "There can, in my view, be no doubt that the High Court has jurisdiction, in a case like the present one, to make a declaration with regard to the lawfulness of operation the sterilisation proposed to be carried out."
His Lordship went on to say at page 63 paragraph C, when dealing with the Court of Appeal’s concerns, that: "The substantive law is that a proposed operation is lawful if it is in the best interests of the patient, and unlawful if it is not. What is required from the court, therefore, is not an order giving approval to the operation, so as to make lawful that which would otherwise be unlawful. What is required from the court is rather an order which establishes by judicial process whether the proposed operation is in the best interests of the patient and therefore lawful, or not in the patient's best interest and therefore unlawful."
I am satisfied that I have the jurisdiction to make a declaration in the circumstances of this case. I am satisfied that it would be appropriate to do so, as the operation is urgently required and clearly is in the best interests of Raquel who sadly is not competent to give consent or withhold consent. The test in **Bolam v Friern Hospital Management Committee (1957)** 1 W.L.R 582 is applicable. It provides that a doctor will not be negligent if it is established that he acted in accordance with practice accepted at the time by the responsible body of medical opinion skilled in the particular form of treatment in question. This is a test to be applied when deciding whether an operation or other treatment was in the best interests of an adult incompetent to give consent.
The orders sought in the originating summons are clearly not appropriate and are far too wide. Accordingly the order I make is in the following terms: i). **It is declared that the open-heart surgery proposed to be performed on the defendant being in the existing circumstances in her best interests can lawfully be performed on her despite her inability to consent to it.** ii). **It is ordered that in the event of a material change in existing circumstances occurring before the said operation has been performed any party shall have liberty to apply for such further or other declaration or order as may be just."** Procedure to be Adopted in an Application for a Declaration
Having regard to my concerns about the way that this application has been brought before the Court, it may be useful to give some guidance concerning future applications. I can do no better than adopt, albeit with local adaption, the procedures suggested by Lord Brandon of Oakbrook in re F. Accordingly, I recommend: (i) Applications for a declaration that a proposed operation on or medical treatment for a patient can lawfully be carried out despite the inability of such a patient to consent thereto should be by way of originating summons issuing out of the Grand Court. Once established, this should be out of the Family Division of the Grand Court; (ii) The Applicant should normally be those responsible for the care of the patient or those intending to carry out the proposed operation or other treatment if it is declared to be lawful; (iii) The patient should always be a party and should normally be a respondent. In cases in which the patient is a respondent the appointment of a guardian ad litem should be considered; and (iv) With a view to protecting the patient’s privacy, but subject always to the judge’s discretion, the hearing will be in Chambers, but the decision and the reasons for that decision will be given in open Court.
A case of this nature should not come straight on for final hearing after the filing of the Summons. There should be a summons for directions heard by a judge and it will be for him to decide on the hearing of such summons whether any, and if so, what further or more detailed directions should be given in the case. The party seeking a declaration should set out the precise terms of the declaration sought in the summons.
I have prepared the order which I now sign for you to take away and it will read that: BEFORE Richard Williams J at the Law Courts, Grand Cayman on the 23rd day of April 2012 UPON HEARING Mr. Jamal Young for the Applicants UPON READING the affidavit of MB sworn on 19th April 2012, the undated affidavit sworn by Dr. Courtney Cummings filed on 23rd April 2012 and the letter from Denisse Valor dated 23rd April 2012 IT IS ORDERED: 1. That MB and CB be appointed as guardians for their daughter, RB. 2. It is declared that the open-heart surgery proposed to be performed on the Defendant being in the existing circumstances is in her best interests and can lawfully be performed on her despite her inability to consent to it. 3. That in the event of a material change in existing circumstances occurring before the said operation has been performed any party shall have liberty to apply for such further or other declaration or order as may be just. *****A copy of the transcript of my ex tempore ruling will be provided to the parties***** DATED this 23rd day of April 2012. HON. RICHARD N. WILLIAMS JUDGE OF THE GRAND COURT