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Fertility tests

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There have been several recent Court of Protection cases dealing with sensitive questions surrounding sterilisation and abortion. Patricia Wass looks at how the court approaches these difficult issues, and the tests that it applies in reaching a decision

Fertility Tests

© omadoig@btinternet.com

The case of A NHS Trust v DE [2013] EWHC 2565 (Fam) was the first time that the court approved a non-therapeutic sterilisation of a male. The background to the case is as follows.

DE suffers from a learning disability, and was nearly 37 when the case was brought. He lives with his parents. It was acknowledged that with the dedication of his parents, and the support of his local disability services, DE had prospered and achieved far beyond what may have been expected, given his level of disability. Prior to 2009, he had not only achieved a modest measure of autonomy in his day-to-day life, but also a long-standing and loving relationship with PQ, who is also learning disabled.

In 2009, PQ became pregnant and subsequently gave birth to a child, XY. There were profound consequences for both families. As a result, DE and PQ had a child which neither was able to care for, so the local authority had to issue care proceedings. These were resolved by the making of a special Guardianship Order in favour of XY’s maternal grandmother, at whose home XY and PQ both live. PQ is unable to take XY out unaccompanied, and so needs the help of a support worker.

There were concerns raised that DE may not have capacity to consent to sexual relations. This meant that protective measures had to be put into place to ensure that DE and PQ were not left alone, and DE became supervised at all times. DE stated very clearly that he did not want to have more children. The relationship with PQ was put under a great deal of pressure, but managed to weather the storm. DE realised that he had upset his parents, and this upset him too. He struggled to understand what was going on, and at the time he denied that XY was his baby (DNA tests confirmed that DE was XY’s father). He did not seem to comprehend that anything he and PQ had done together had resulted in the birth of a child.

The NHS Trust applied to the court for various declarations:

1) that DE did not have capacity to make a decision on whether or not to undergo a vasectomy and consent to the procedure;

2) that it was lawful and in DE’s best interests that he should undergo a vasectomy; and

3) that it was lawful for the NHS Trust to take any steps medically advised by the treating clinicians at the trust responsible for DE’s care to undertake the procedure, which could include the use of a general anaesthetic.

An assessment was carried out by a community learning disability nurse and a clinical psychologist, to assess DE’s understanding of the vasectomy procedure, and his capacity to consent to it. The Official Solicitor also instructed an expert to provide an independent psychiatric report. This concluded that DE did not have capacity to consent to sexual relations or to contraception.

The local authority therefore held a safeguarding adult conference in November 2012, and a protection plan was put into place, meaning that DE and PQ were not to be left alone without supervision. This had an adverse effect on DE. He stopped going to a local day centre on the bus on his own, perhaps as a result of a loss of confidence and fear of doing wrong. Between November 2012 and June 2013, the relationship between DE and PQ broke down, possibly because PQ was frightened and had a limited ability to understand what was happening.

Initially, the independent expert’s report had stated that there was a not insignificant risk of long-term chronic pain following a vasectomy, and therefore thought it would not be in DE’s best interests to carry out the procedure. However, following other medical evidence, where it was reported that the likelihood of severe scrotal pain following a vasectomy is less than 0.5%, he produced a further report concluding that he thought it would be in DE’s best interests to carry out the vasectomy.

By about March 2013, DE and PQ resumed their relationship. It was clear that they both wished to engage in sexual relations in the future. The community learning disability nurse and the clinical psychologist, who had been working with the couple, were both of the opinion that DE had capacity to consent to sexual relations. This was agreed by the independent expert and DE’s parents. A further report was produced in July 2013, to advise that DE did have capacity to enter into sexual relations, and so a vasectomy would be in his best interests.

To carry out the balancing exercise required for the court to make a decision, it had to consider in detail certain aspects of DE’s life and his views, so far as they could be ascertained.

In any of these difficult matters concerning, for example, a non-therapeutic sterilisation, this is a treatment decision so serious that the court has to make it

His wishes and feelings were relevant in ascertaining where he wished to live, whether or not he wished to have more children, and whether or not he wished to have a vasectomy. The court also had to consider the possibility of DE changing his mind in the future.

The judgment was given by Mrs Justice Eleanor King. She concluded that DE did not have the capacity to consent to a vasectomy, and that inevitably coloured the court’s approach. She advised that the safer approach was to conclude:

  • that DE was clear and consistent that he did not wish to have another child; and
  • that DE did not have the capacity to consent to contraception.

It was therefore for the court to consider whether or not it was in DE’s best interests to have a vasectomy, taking into account his wishes in respect of not having a baby.

The judge commented that in relation to the reported cases on consent to contraception, there remained uncertainty as to whether a man needs to understand female contraception, as well as male contraception, before he is deemed to have capacity. In this case, she concluded that DE did not have the capacity to consent to contraception at any level. The judge also considered whether the use of a condom could provide a viable alternative to a vasectomy, but felt this would not be sufficiently reliable.

She said the court “at no stage underestimates the seriousness of making an order which has the effect of taking away the fertility of a man”, adding that for the purposes of this decision she regarded a vasectomy as “permanently sterilising DE”.

The judge also took into account the fact that a further pregnancy, resulting in the birth of another child, would cause serious psychological distress and consequences for DE. It was likely that the child would be taken into care and placed for adoption. The judge put emphasis on the fact that it might result in the termination of the enduring relationship between DE and PQ, which all the professionals involved regarded as of paramount importance to DE.

Mrs Justice Eleanor King summed up the relevant law set out in the Mental Capacity Act 2005 (MCA 2005), and also took into account the Human Rights Act 1998 and DE’s article 8 rights under the European Convention of Human Rights (right to respect for private and family life).

This gave rise to competing rights to balance and consider:

1) if DE underwent the vasectomy, then that meant that DE lost or significantly reduced his ability to make a choice about becoming a genetic parent in the future; and

2) under article 8, DE had a right to respect for his autonomy and that included his decision not to have any more children, and also his stated wish that he wanted to develop a sexual relationship with PQ which should be as anxiety-free as possible.

The judge also had to consider article 23 of the United Convention on the Rights of Persons with Disabilities (UNCRPD). This was ratified on 8 June 2009, but has not been incorporated into English law (this was raised by the QC instructed by the Official Solicitor).

Article 23 says:

“1. State parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family and parenthood, and relationships, on an equal basis with others, so as to ensure that:

a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognised;

b) The rights of persons with disabilities to decide freely and

responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognised, and the means necessary to enable them to exercise these rights are provided; and

c) Persons with disabilities, including children, retain their fertility on an equal basis with others.”

Taking all the reports and evidence into consideration, the judge concluded overwhelmingly that it was in DE’s best interests to have a vasectomy. This was not a decision made lightly, because the order permitting the lifelong removal of a person’s fertility for non-medical reasons required strong justification.

In making her decision, the judge took into account DE’s private life and his relationship with PQ, his relationship with his parents, and hard-earned levels of independence. She further commented that every assessment of the best interests under the MCA 2005 was, by its very nature, fact-specific.

While in legal circles this has been hailed as a landmark ruling, there is a view that this has actually restated pre-existing principles. It is not thought that this will open the floodgates to other similar claims. Any future case would have to be considered on its facts, and would have to pass stringent tests not just concerning capacity, but taking all relevant factors into consideration.

Female contraception

In A Local Authority v K [2013] EWHC 242 (COP), the Court of Protection also dealt with an application for a best interests decision in relation to contraception or sterilisation of a vulnerable adult.

This case concerned a 21-year-old woman, K, who was born with Down’s Syndrome and has an associated mild / moderate learning disability. She is a day student at a specialist college for people with learning disabilities. K is looked after by her parents, together with her older brother. She is part of a loving, close, devoted and supportive family.

Over recent years, K’s parents had become increasingly concerned that as K became older, their ability to control and supervise aspects of her life would be reduced, and so the risks of her engaging in both wanted and unwanted sexual activity would increase. They believed that if K became pregnant at any time in the future, this would seriously affect her. So, in 2010, they sought medical advice about contraception from their GP, and under a local anaesthetic, a hormonal implant (Implanon) was inserted into K’s arm. The procedure proved difficult and traumatic for K (and her mother). Unfortunately, the implant was not successful, and it changed K’s temperament significantly over the following months, resulting in K becoming difficult to manage. So, a few months later, K had a further difficult procedure to remove the implant.

The parents requested K’s GP to refer her to a gynaecologist at the NHS Trust, to consider sterilisation. This happened in October 2011, and the consultant expressed a clear view that K should be sterilised. The recommendation was brought to the attention of a matron for safeguarding vulnerable adults, and she advised that due to the nature of the treatment, there needed to be a best interests meeting, and a second opinion.

A further NHS consultant saw K. Her view was that if contraception were to be provided, the least restrictive option for K would be a mirena coil. There followed two best interests meetings – one in November 2011, and another in June 2012. These involved staff from the trust, and K’s parents. The second meeting also included representatives from the local authority. At the conclusion of the second meeting, it was held that a non-therapeutic sterilisation was not in K’s best interests. Because of the differences in the medical opinions, the advice of a third gynaecological consultant was sought. K’s parents were not happy. After the June 2012 meeting, Mrs K wrote to the first consultant as follows: “…we feel that to do nothing (in relation to the sterilisation or contraception) is a very unsatisfactory outcome… It is our intention in the future, and before [K] leaves our care, to take her abroad to seek assistance with this matter both privately and confidentially.”

As a result of this threat to remove K from the jurisdiction for the purpose of sterilisation, the local authority issued proceedings on 11 July 2012. At the hearing, K’s parents gave undertakings not to remove K from the jurisdiction.

By this time, the third consultant had provided his opinion, in which he concluded that K did not need contraception at the moment, but that K’s contraceptive needs should be reviewed regularly if she were aiming to move to independent living arrangements. Importantly, he advised that IUD/IUS implants were currently recommended as the first line contraceptive in adolescent girls; he also said that only if K were sexually active and an IUS has been shown to be unsuccessful should (hysteroscopic) sterilisation be considered.

Within the proceedings issued by the local authority, they (together with the Official Solicitor) jointly commissioned a report from Dr Samuel Rowlands (clinical lead in community sexual and reproductive health at Dorset Healthcare University NHS Foundation Trust). He made a number of helpful comments, detailed in the judgment, and discussed sensitively, and in plain language, the available contraceptive options for K. He advised that it was not justifiable to expose K to the disadvantages of the various contraceptive interventions, and if K was supervised in the community and was not showing signs of initiating any sexual relationship, then contraception would not be in her best interests.

Finally, and crucially, he advised that sterilisation was not in K’s best interests and was not the least restrictive option.

At the hearing in February 2013, Mr Justice Cobb had to weigh up the competing benefits and disadvantages of the sterilisation procedure now and in the future. By the time of the hearing, the parties agreed that no steps needed to be taken immediately.

The judge confirmed that no parties in the proceedings raised any issue about capacity, but what he helpfully did was set out the test to evaluate capacity in circumstances concerning sterilisation and contraceptive treatment, which had been formulated by Mr Justice Bodey in the case of A Local Authority v A [2010] EWHC 1549 (COP).

The test for capacity to be applied to ascertain a woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment includes consideration of:

a) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);

b) the types available and how each is used;

c) the advantages and disadvantages of each type;

d) the possible side-effects of each and how they can be dealt with;

e) how easily each type can be changed; and

f) the generally accepted effectiveness of each.

The judge sought to achieve the right balance between protection and empowerment, as advised by Dr Rowlands.

The judge considered that the case engaged both the article 8 and article 12 rights of K. He also highlighted the cases of Re MB (Medical Treatment) [1997] 2 FLR 426, and R-B v Official Solicitor: Re A (Medical Sterilisation) (1999) 53 BMLR 66.

His conclusion was that it was in K’s best interests for him to bring as much clarity to the medical treatment issues as he could. He granted a declaration saying that sterilisation would be a disproportionate (and not the least restrictive) step to achieve contraception for K in the future (unless there was a significant change in her circumstances).

He also took the opportunity to remind medical (and where relevant, legal) practitioners of the role of the Court of Protection (CoP) in considering a question of non-therapeutic sterilisation. Such a treatment decision is so serious that the court has to make it.

“My own opinion is that it would be a total affront to the autonomy of this patient to conclude that she lacks capacity to the level required to make this decision. It is of course a profound and grave decision, but it does not necessarily involve complex issues. It is a decision that she has made and maintains; and she has defended and justified her decision against challenge.”

Mr Justice Holman in Re SB

The judge set out the process, which is helpful for all CoP practitioners to note when faced with similar issues.

a) “The decision of whether someone who lacks capacity to consent should have a non-therapeutic sterilisation is a question involving ‘serious medical treatment’ (see Practice Direction E (PD9E) – Applications relating to serious medical treatment). Non-therapeutic sterilisation is specifically identified in this category (see paragraph 5(c)).

b) “A question concerning non-therapeutic sterilisation of a person who lacks capacity to give consent ‘should be brought to the Court’…

c) “Where a question arises as to non-therapeutic sterilisation of a person who lacks capacity to consent, the proposed applicant (whether it be carer, local authority or trust), can usefully discuss the application with the Official Solicitor’s Department before the application is made (see PD9E paragraph 8): such cases should be addressed to a family and medical litigation lawyer at the Office of the Official Solicitor.

d) “The organisation which is, or will be, responsible for providing clinical or caring services to P should usually be named as a respondent in the application form (where it is not already the applicant in the proceedings).

e) “Proceedings of this kind must be conducted by a judge of the Court of Protection who has been nominated as such by virtue of section 46(2)(a) to (c) of the article (that is, the President of the Family Division, the chancellor or a puisne judge of the High Court) (paragraph 12 PD9E).

f) “At the first hearing of the application the court will consider:

i) whether P should be joined as party to the proceedings, and give direction to that effect;

ii) if P is to be joined as a party to the proceedings, decide whether the Official Solicitor should be invited to act as litigation friend or whether some other person should be appointed as litigation friend;

iii) identify anyone else who has been notified of the proceedings and who has filed an acknowledgment and applied to be joined as a party to proceedings, and consider that application; and

iv) set a timetable for the proceedings including, where possible, a date for the final hearing.

g) “Note that the hearing will generally be in public, given the nature of the application, although the court will ordinarily make an order pursuant to rule 92 that restrictions be imposed in relation to publication of information about the proceedings.”

[37]. “Where a declaration is needed, the order sought should be in the following or similar terms:

a) That P lacks capacity to make a decision in relation to the

[proposed medical treatment or procedure] e.g. ‘That P lacks capacity to make a decision in relation to sterilisation by [named procedure]’; and

b) That, having regard to the best interests of P, it is lawful for the [proposed medical treatment or procedure] to be carried out by [proposed healthcare provider];

or

c) That it is not in the best interests of P to undergo [the proposed medical treatment or procedure]”.

Termination of pregnancy

A further difficult case had to be dealt with recently by the Court of Protection, concerning the termination of a pregnancy. This was the case of Re SB (A Patient; Capacity to Consent to Termination) [2013] EWHC 1417, heard by Mr Justice Holman in the CoP on 21 May 2013.

SB was a well-educated 37-year-old woman of considerable intelligence, who had previously held a high-level and demanding job in IT. Her mother was English and her father was Libyan, and through SB’s father, SB was a Muslim. She had travelled extensively during her adult life.

Several times in the eight years or so before the case was heard, SB had presented with symptoms which were diagnosed as those of bipolar disorder. She had been detained under compulsory or similar powers, at various times in Italy, France and England. SB denied having an illness, but there was clear psychiatric evidence to the contrary, and a feature of her type of illness is that patients do deny it.

The judge accepted that SB had suffered from the disorder and continued to do so. At times, it had been controlled by medication. At other times, it had not, and SB had suffered both remissions and relapses.

In 2011, SB met a man who later became her husband. He was Egyptian, and also a Muslim. During 2011, SB became pregnant, but at the time, she had been taking prescribed drugs for her mental state. She underwent a termination in Italy around 19 weeks into the pregnancy. SB said she had done this at least in part because she was concerned about the effect on the foetus of the high level of medication she had been taking. She gave evidence to the fact that she did not regret that termination, although she did regret becoming pregnant at that time. She also rejected a suggestion that it was against the Muslim faith to have had the termination in the circumstances she did.

Time moved on, and SB and her partner married in April 2012. She and her husband came to live in England, and SB became pregnant again in December 2012. SB gave evidence that she had wanted to become pregnant and have a baby, although she felt her husband was indifferent to her pregnancy. At first, she attended scans and other antenatal appointments, and acted in the caring way of any expectant mother who wanted her baby. Perhaps out of that very desire, it seems that SB ceased taking her previously prescribed medication. This continued until April 2013.

SB then started to display signs of becoming unwell again. There was a total reversal in her attitude towards the baby she was carrying. On 17 April 2013, she voluntarily, and on her own initiative, attended a clinic in a town not far from where she lived, where she sought an abortion. The clinic agreed that she should have one. However, they arranged an appointment for the abortion to take place a few days later in a town several hundred miles away from her home. SB did not keep the appointment, as she said it was too far for her to travel and she said she did not have sufficient funds to do so.

She investigated other places where an abortion could take place, and made another appointment at a clinic nearer her home. She did not keep the appointment as she did not approve of the method of termination. But SB was so determined at that stage to have a termination, that she then ordered online forms of medication designed – or believed by her – to procure a miscarriage. She was detained under section 2 of the Mental Health Act 1983 before the medication arrived. At the time the case was heard, SB remained compulsorily detained. She continued to maintain her wish to have an abortion, and had a consultation with a doctor. He fully explained to her the proposed procedure, including the physical risks to her, and he satisfied himself that she understood them.

In view of the time limits for an abortion to be performed under the Abortion Act 1967, the matter came to court to be heard urgently, as SB’s pregnancy was already approaching the 24th week. The court sat late in order to give the judgment.

The hospital where SB was detained gave evidence to say that she lacked the capacity to make her own decision to have a termination. In view of her purported lack of capacity, the decision had to be made by the CoP, applying the test of best interests set out in section 4 of the MCA 2005.

The declarations sought by the hospital were as follows:

1) whether SB lacked capacity to make decisions about the desired termination of her pregnancy; and

2) if she lacked capacity, whether it was in SB’s best interests to undergo an abortion procedure.

By the time of the hearing, SB had approached a local firm of solicitors and obtained a public funding certificate. That solicitor was subsequently retained by the Official Solicitor to conduct the case. An urgent and comprehensive report was provided by an independently instructed consultant psychiatrist. The judge advised that he had no doubt at all that SB had ample capacity and autonomy directly to instruct her own lawyers to effectively protect and pursue her own position and interests in the case. He set out the relevant provisions of the MCA 2005 (sections 1, 2 and 3).

The treating consultant psychiatrist advised that he did not believe that SB had capacity to make the decision concerning the termination of her pregnancy. He said this was because SB had certain persecutory or paranoid beliefs as a result of the bipolar illness. Counsel for the hospital and NHS Trust summed it up by saying: “She is not thinking straight.”

The independent psychiatrist also came to the same view. The “not thinking straight” was because of SB’s marked change in attitude between her pleasure at being pregnant in the early stages of pregnancy, followed by the desire to seek termination since April 2013. He said: “There is a strong temporal relationship between the patient stopping medication, developing paranoid ideas about her husband and mother, and deciding to opt for a termination of her pregnancy.” Having heard all the evidence, the judge reached a different overall conclusion to that indicated by the psychiatrist, and SB’s husband and mother.

He accepted that SB suffered from “an impairment of, or a disturbance in the function of, the mind or brain”, set out in the MCA 2005. He went on to say that this was only the beginning of the test for capacity, and that section 2 of the MCA 2005 goes on to require proof that, because of such an impairment or disturbance, the person “at the material time… is unable to make a decision for himself”. Once before the court, the overall assessment of capacity is a matter for the judgment of the court (paragraph 38).

Mr Justice Holman said: “The relevant question under section 2 is where she is ‘unable’ to make a decision. There is absolutely no doubt that this lady has, many weeks ago, made a decision. She persists in it, and she very, very strongly urges it upon me today. So there is no doubt that she has capacity to ‘make’ a decision and she has made one.”

However, section 2 also has to be read by application of section 3(i). What had been said in the case was that, because of her illness, the patient was unable to “understand the information relevant to her decision”.

The judge said that while SB may have some skewed thoughts and paranoid or delusional views (especially about her husband’s attitude towards her and his behaviour), she had given many other reasons for requesting a termination, for example that she was worried about her ability to bring up a child, and that she did not want to have a baby while being compulsorily detained. She had said on a number of occasions that she felt suicidal at the prospect of having to carry the child to term.

His concluding remarks deserve to be noted: “My own opinion is that it would be a total affront to the autonomy of this patient to conclude that she lacks capacity to the level required to make this decision. It is of course a profound and grave decision, but it does not necessarily involve complex issues. It is a decision that she has made and maintains; and she has defended and justified her decision against challenge.”

Future cases

The cases referred to above highlight the very difficult issues that the court has to determine concerning cases relating to procreation and all the consequences of the same. It is self-evident that each of the cases, and the judgments made, will turn on their particular facts. This no doubt will be seen in future cases that have to be determined by the court. It is interesting to note some of the tests being set down in these matters, and it is good to see how the principles set down in the MCA 2005 are being applied by the judges in health and welfare matters.

It is a useful reminder for all lawyers that in any of these difficult matters concerning, for example, a non-therapeutic sterilisation, this is a treatment decision so serious that the court has to make it. For those of us practising in the CoP arena, and dealing with these issues, we need to be mindful of the procedures set out in Practice Direction E (PD9E) when being faced with circumstances where such a treatment decision may need to be given consideration by the court.

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