Sterilisation and best interests

Predeterminiation iStock 000016468646Small 146x219Salma Kantharia explains why a High Court judge ruled that it was in the best interests for a 36-year-old man to be sterilised.

Legal history was made in A NHS Trust v DE as it was the first case in this jurisdiction in which the courts ordered that sterilisation is in the best interests of a 36 year old male with learning disabilities, DE.  

Applications of this nature have been made to the courts before but none have been successful. The subject matter is emotive and the ethical and legal issues that arise are challenging and of considerable public interest as has been evident by the amount of media interest this case has received.  

DE has been assessed to have an IQ of 40 with a mental age of between 6 and 9 years. He lives with his parents and he has received support from the local authority’s social services department for a number of years. Through the input of family and professionals, over the years DE has achieved certain milestones and levels of independence in his life which, although modest to the everyday onlooker, have been significant for someone with his level of learning disability.

DE has been in a committed relationship with PQ, a learning disabled woman, for over 10 years. Not only has this relationship stood the test of time but as a couple they have endured and survived substantial challenges, including an unexpected pregnancy, the subsequent birth of their child, XY, and care and Court of Protection proceedings. Such challenges would arguably be a test of any relationship let alone that of a learning disabled couple. Relationships between learning disabled couples are unique and the court heard evidence that an enduring relationship between two significantly learning disabled people is remarkable and should be valued and protected in their best interests.

Challenges for DE and PQ came to a head in 2009 when it was discovered that PQ was pregnant. The ramifications impacted not only on DE and PQ, but also their families and, understandably, remarks were made by family members in the heat of the moment. Evidence was heard about the impact of this for DE whose parents have been and continue to be central to his life and about the psychological harm it would cause DE if he had another child.

In light of the pregnancy and subsequent birth of XY, legitimate questions were raised about DE’s capacity to enter into sexual relations. If an individual is assessed as lacking such capacity then it becomes unlawful and a criminal offence for any person to engage in sexual relations with the incapacitous person. Local authorities have statutory obligations to safeguard vulnerable adults who lack such capacity and assessments were undertaken which concluded that DE lacked the capacity to consent to sexual relations. This included an assessment by Dr Milnes, Consultant Psychiatrist in Learning Disability, after which the court made an interim declaration, by consent, that DE lacked capacity to consent to sexual relations. It is important to note that by the end of the proceedings, after work with DE by the fourth respondent, all parties accepted that DE had capacity to consent to sexual relations but not to consent to contraception.

In light of the interim declaration, the local authority undertook a safeguarding vulnerable adults investigation, which resulted in the implementation of a protection plan leading to the supervision of all contact between DE and PQ.

The safeguarding investigation also identified the risk of chance meetings between DE and PQ when unaccompanied in the community. To address this, DE began to receive supervision during his day to day activities, including those with which he had achieved a level of independence. Consequently, the safeguarding measures began to undermine DE’s autonomy and his relationship with PQ. The social worker for the local authority said in evidence that in addition to the loss of privacy between DE and PQ, DE had also experienced a loss of walking through the town independently, attending the shops to make purchases on his own, going for a coffee with friends, and attending the gym without supervision.

A NHS Trust applied to the Court of Protection in June 2012 and, to begin with, the primary focus of the proceedings was serious medical treatment. The local authority became a party to the proceedings in November 2012 and began to advance a positive case in favour of the vasectomy, with the focus shifting from serious medical treatment to welfare reasons that the vasectomy was in DE's best interests.

As a result of this, the parties saw an increasing overlap in the involvement of the health and social care organisations and lawyers will be aware that the delineation of responsibilities between these two disciplines can itself give rise to legal complexities. However, in this case there was an early recognition of the need for collaboration between the parties, which is entirely in line with the spirit of the Mental Capacity Act 2005 and as such the proceedings did not get derailed by issues of distinct health or social care responsibilities, with the focus remaining on DE’s best interests.

Ultimately, in cases of this nature the court and parties are faced with having to address a person’s basic human rights where the person has been assessed to lack the capacity to make decisions about their own future. It is this which gives rise to the ethical and legal debates around the interplay between the Mental Capacity Act 2005 and the European Convention of Human Rights. In this case some of the keys issues were:

  • DE’s right to become a genetic parent in the future;
  • DE’s right to respect for his choice not to have any more children;
  • DE’s right to maintain his relationship with PQ and for them to develop a sexual relationship;
  • DE’s quality of life as a result of the supervision and the impact of this upon his independence;
  • How much weight should be afforded to the wishes and feelings of an incapacitous adult.

The court in this case had to balance the competing rights of the loss or reduction of DE’s right to make a choice about becoming a genetic parent in the future, and, on the other hand, DE’s right to respect for his autonomy, including his decisions not to have any more children and his desire to develop a sexual relationship with PQ.

In reaching its decision, the court applied the ECHR Article 8 points in the context of section 4 of the Mental Capacity Act 2005, best interests. In conclusion, Mrs Justice King said that “...it is overwhelmingly in DE’s best intersts to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting lifelong removal of a person’s fertillity for non-medical reasons requires strong justification”. The judge found the following factors to be in favour of DE having a vasectomy:

  1. DE’s private life.
  2. DE’s loving and enduring relationship with PQ; the fact that DE was distressed when there was a break in the relationship at the start of the year; that DE’s relationship should be respected.
  3. The relationship has been sexual in the past.
  4. DE’s unequivocal and consistent wishes and feelings not to have any more children.
  5. DE cannot be relied upon to use alternative forms of contraception consistently.
  6. Another child would cause DE deep distress and if removed from PQ, would be likely to cause a breakdown in their relationship.
  7. DE’s relationship with his parents: his consistent view that he wants to live with his parents; the distress to DE’s parents when PQ became pregnant and the impact of this upon DE; the level of independence which they would afford DE would be compromised.
  8. DE’s independence: following the pregnancy, DE losing all autonomy and his being supervised at all time; skills which took DE years to achieve had been lost when not used, as had much of his confidence.

Mrs Justice King says at paragraph 96: “Dr Milnes regarded the most magnetic factor in favour of a vasectomy as being DE’s desire not to have any more children. It is undoubtedly a magnetic factor carrying considerable weight, but in my judgment, allowing DE to resume his long term relationship with PQ and restoring to him his lost skills and independence are as important, if not more so, when determining his best interests.”

The Mental Capacity Act 2005 coupled with the European Convention of Human Rights do not provide a straightforward legislative framework for practitioners and lawyers to grapple with when dealing with the complex ethical and legal issues which arise in cases such as this. That said, the decision in this case is the right one, especially from a local authority perspective. Local authorities are tasked with the promotion of an individual’s independence, ensuring that the care they receive is about enablement and is person-centred. In this case as a result of safeguarding responsibilities, the local authority was faced with having to impose restrictions to undermine that independence. In addition, enduring relationships between learning disabled adults are rare and it is right that an individual’s choices about their relationship be respected and preserved through the means of best interests where possible, especially where that relationship has been one in excess of 10 years.  

Although the Official Solicitor did not support the vasectomy, on the last day of the hearing, he adopted a neutral position. The parties worked collaboratively and this case provides a good example of the legislation in this area working well to achieve the right decision for DE. This is not a case which will open the floodgates for sterilisation cases. It is a fact specific case. The facts have been so unique and rare and it is this combination which has led to this truly exceptional decision of the courts.  

Salma Kantharia is a Health and Social Care Solicitor at national law firm Weightmans LLP. She successfully advised the local authority in this case. Salma can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

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