Jersey Unreported Judgments

[2006]JRC116

royal court

(Samedi Division)

22^nd August 2006 

Before     :

Sir Philip Bailhache, Kt., Bailiff, and Jurats Le Brocq and Bullen.

 

IN THE MATTER OF ARTICLE 43(17)(d) OF THE MENTAL HEALTH (JERSEY) LAW 1969

AND IN THE MATTER OF C. J. R.

Advocate C. M. B. Thacker for C. J. R.

The Solicitor General (partie publique).

judgment

the bailiff:

1.        This application raises a short but important point of law in relation to the extent of the powers of a curator appointed pursuant to the provisions of the Mental Health (Jersey) Law 1969, to which we shall refer as the 1969 Law.  The hearing took place in private but, in accordance with the principles laid down in JEP v Qatar [2002/227], we are giving this judgment in open Court.

2.        The application came before the Court, sitting in Chambers on the 11^th August 2006 on the application of Advocate Thacker, as curator of C.J.R, to whom we shall refer as "the Interdict".  Consent was sought from the Jurats, pursuant to Article 43(17)(d) of the 1969 Law, for certain medical treatment to be administered to the Interdict.  The Deputy Bailiff expressed some doubt as to whether this fell within the purview of that statutory provision and the Court adjourned the application and convened the Attorney General as partie publique.  The matter was referred to the Solicitor General, to whom the Court is most grateful for her research and legal submissions. 

3.        The brief history is that Advocate Thacker was appointed as curator of the Interdict on the 16^th July 1999.  The Interdict is now 51.  He was at one stage a patient in St Saviours Hospital, but is now a resident at a residential home which has the day to day care of him.  The Interdict is suffering from a form of cancer and needs treatment.  The precise form of treatment is a matter for consideration and would, ordinarily, have been a matter for decision by the Interdict himself.  The Interdict is, however, unable by reason of mental disorder to make an informed decision of this kind.  The medical authorities referred the matter to the curator who made an application to the Court seeking the Jurats' consent.  The question is whether the Court has the power to receive an application of this kind under its curatorship jurisdiction. 

4.        Prior to the coming into force of the 1969 Law, a curator was generally only appointed if the person of unsound mind owned property which needed to be administered.  When the individual had no property, responsibility for caring for his person would devolve upon the family or, in the absence of any family able to undertake that duty, upon the Connétable of the Parish.  Authority for that proposition is to be found in Cooper v President of the Public Health Committee and Ors [1966] JJ 685 at 691.  In that case Bois, Deputy Bailiff, stated that it was never possible to appoint a curator to the person alone, and that it was not until the enactment of the Loi (1907) Sur les Curatelles that it was possible to appoint a curator to the property alone except where the reason for the appointment was the prodigality of the ward.  As a matter of generality however, at customary law a curator had responsibility for the property and person of an interdict.

5.        The Solicitor General has drawn our attention to a number of cases where the Court has distinguished between its jurisdiction over the person and property of an Interdict.  In re: Le Monnier [1910] Ex 341, the Court restored the rights of the interdict over his person while maintaining the authority of the curator to manage his property.  Similarly In re: Le Couter [1910] Ex 499, the curatelle was continued in relation to the goods and property of the interdict alone. 

6.        Upon the enactment of the 1969 Law, the law relating to curatelles was swept away.  Article 43(2) provides that,

"as from the date of the coming into force of this Law, the law, whether customary or enacted, relating to curatelles shall cease to have effect, except in so far as expressly provided by this Law."

Article 43(1) provides, however, that the grounds upon which a curator might be appointed to manage and administer the property and affairs of a person are the same grounds as those on which, prior to the coming into force of the Law, a person might have been placed under interdiction in respect of his or her person or property or in respect of the person's property alone.

7.        Article 43(5) of the 1969 Law imposes duties upon the Attorney General to make an application to the Court for the appointment of a curator "to manage the property and affairs" of the person believed to be incapable of doing so.  The oath sworn by a curator is in the following terms -

 "...do you swear and promise before God that well and faithfully you will discharge the duties of curator of the property and affairs of ..... ; that you will conserve and, so far as in you lies, increase his or her property as if it were your own and that you will render full and true accounts to whom so ever such accounts are rightfully due as required by law." 

8.        Turning to the other relevant provisions of the 1969 Law, Articles 6 and 7 provide for the admission of a patient to hospital and for his detention there for observation or for treatment respectively.  Clearly in such circumstances the responsibility for determining what medical treatment ought to be administered lies with the hospital authorities in accordance with the general law. 

9.        Articles 14 to 16 of the 1969 Law provide for the reception of persons into guardianship.  Article 14, so far as it is relevant, provides -

"(1)     A patient may be received into guardianship, for the period allowed by the following provisions of this Law, in pursuance of an application (in this Law referred to as a "guardianship application") made in accordance with the following provisions of this Article.

(2)       A guardianship application may be made in respect of a patient on the grounds that -

(a)        the patient is suffering from mental disorder or addiction and that the said disorder or addiction is of a nature or degree which warrants the reception of the patient into guardianship under this Law; and

(b)        it is necessary in the patient's interests or for the protection of other persons that the patient should be so received.

(3)       The person named as guardian in a guardianship application may be either the Minister or any other person (including the applicant), but a guardianship application in which a person other than the Minister is named as guardian shall be of no effect unless the person so named is accepted by the Minister.

(4)       Every such application shall be delivered to the Minister and, except where the person so named is the Minister, shall be accompanied by a statement in writing by the person so named that he or she is willing to act as guardian.

(5)       A guardianship application shall be founded on the written recommendations in the prescribed form of 2 registered medical practitioners, including in each case a statement that in the opinion of the registered medical practitioner the grounds set out in paragraph (2)(a) or (b) apply, and each such recommendation shall include -

(a)        such particulars as may be prescribed of the reasons for that opinion so far as it relates to such grounds;

(b)        a statement of the reasons for that opinion."

10.      Article 16(1) provides -

"(1)     A guardianship application under this Part shall be of no effect unless it is delivered to the Minister within 14 days beginning with the day on which the patient was last examined by a registered medical practitioner with a view to the making of a medical recommendation in connection with the application, and unless the Minister, having satisfied himself or herself that the application and the medical recommendations comply with the requirements of this Part, has approved the application, and an application so approved shall be sufficient authority for the taking into the guardianship of the person named as guardian in the application of the patient to whom the application relates, and a guardianship application so approved shall, subject to the provisions of any order made under Article 52, confer on the Minister or the person so named, to the exclusion of any other person, all such powers as would be exercisable by it or the person in relation to the patient if it or the person were the father of the patient and the patient were a child, and, in a case where the Minister is named as guardian, the Minister may, if in the Minister's opinion the circumstances warrant the taking of such a course, require that the patient -

(a)       shall reside -

(i)        in a hospital or other institution administered by the Minister, or

(ii)       with such person as the Minister may think fit;

(b)       shall attend at such training centre as may be specified by the Minister, at such times or for such periods as may be so specified.

11.      When the papers relating to the curator's application under Article 43 for the Jurats' consent to medical treatment were received by the Attorney General, they included a letter from a consultant psychiatrist to the consultant in haematology and blood, which contained the following passage -

"He [the Interdict] could be made subject to guardianship, however this would only have power over where a person resides and attendance at training centres."

12.      This view is, in our judgment, incorrect.  Article 16(1) provides that the approval of a guardianship application confers upon the guardian "all such powers as would be exercisable...in relation to the patient if...[the guardian] were the father of the patient and the patient were a child..."  The powers and duties of a father in relation to a child include the giving or withholding of consent to medical treatment.  That was decided in In re: an Infant [1995] JLR 296 at 305.  It is true that the judgment refers to the parents rather than to the father, but in the context of this provision of the 1969 Law it is the guardian who possesses parental rights and duties in relation to the patient.

13.      The clear intention of the legislature when the 1969 Law was passed was to remove from the curator any responsibility for the person of an interdict.  The curator's duties are to manage the property and affairs of the interdict.  He is not concerned, other than in a broad moral sense, with the physical well being and destiny of the interdict; that remains the responsibility of the interdict's family or the Connétable as père de la paroisse, or perhaps the institution in which the interdict resides.  If particular decisions in relation to the Interdict's medical treatment or physical well being require to be taken and the Interdict is not a detained patient under the provisions of Article 6 or 7 of the 1969 Law, the prudent course of action may well be to apply for the appointment of a guardian.  The guardian would undoubtedly have the authority to take such decisions. 

14.      We do not of course exclude the power of the family, in appropriate circumstances, to take decisions in relation to interdicts requiring medical treatment.  It is not necessary, for the purposes of this case, to determine with precision the type of decision which might require the appointment of a guardian, nor is it necessary to lay down the precise ambit of the authority of members of the family or the next of kin to give consent to medical treatment. It is clear, however, that the medical people concerned with the care of this Interdict feel the need for some further authority before they can embark upon the requisite medical treatment. 

15.      We think that the appropriate course of action for those concerned with the care of the interdict is to seek the appointment of a guardian under the 1969 Law.  It is clear that the curator does not have the requisite authority to grant a consent of this kind.  Mr Thacker generously accepted the force of the arguments deployed by the Solicitor General and told the Court that he did not wish to pursue his application.  We conclude that the application for the appointment of Jurats to be appointed to consider the merits of the proposed course of action must therefore be refused.

Authorities

Mental Health (Jersey) Law 1969.

JEP v Qatar [2002/227].

Cooper v President of the Public Health Committee and Ors [1966] JJ 685.

Loi (1907) Sur les Curatelles.

In re: Le Monnier [1910] ex 341.

In re: Le Couter [1910] ex 499.

In re: an Infant [1995] JLR 296.