Re S (hospital patient: court’s jurisdiction) [1995] 3 All ER 290 (CA)

Declaration – jurisdiction – legal standing

The mistress of an incapacitated Norwegian stroke victim, living in the UK, sought and obtained an injunction preventing his wife and son removing him from hospital and taking him back to Norway to be cared for. She then sought a declaration that it would be unlawful to remove him from the jurisdiction, because it was not in his best interests to do so. The wife and son contended that the court had no jurisdiction to grant declaratory relief where there were no rights or obligations existing or likely to exist as between the parties, and the claim involved the inability of a mentally incapable adult to exercise his right to choose the nature and extent of his physical care.

Dismissing the wife’s arguments, the court said that , in exercising its jurisdiction to grant declaratory relief, it would not insist on the demonstration of a specific legal right by a party who sought such relief in respect of a serious justiciable issue – namely the appropriate future care of an adult incapacitated by illness – and who had a genuine and legitimate interest in obtaining a decision against an adverse party. In this case, even if it had been necessary to demonstrate a specific legal right which was liable to be infringed, the mistress had done so by her actions in assuming and discharging the duty of ensuring that the patient was properly cared for, and arranging and contracting on his behalf with the private hospital for his treatment.

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