Contraception, capacity and coercion

In the first case of its kind, the High Court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it. Caroline Cross examines the judgement.

In A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam), Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

Mrs A then met Mr A in 2007 and moved in with him. Mr A also suffered from learning difficulties, and his intellectual functioning was only at 1% of people his age. Initially Mrs A was taking contraception in the form of a monthly depot injection, but she stopped taking the injections in June 2008, just before they were married.

Concerns were then raised because Social Services could not contact Mrs A. Her college course-coordinator, Miss S, reported fears over Mr A’s controlling and abusive behaviour: Mrs A was often upset at college, and had reported that she had been assaulted by Mr A. She also stated that Mr A had told her she was not to speak to Social Services. In particular, Mrs A also said that she no longer wanted to have injections because she and Mr A wanted a baby.

Later in the academic year, Mrs A thought she was pregnant. From discussions with Mrs A, Miss S became aware that Mrs A did not want a baby, but felt that if she did not have one Mr A would leave her. Mr A had told her that the child would not be removed from them because they were married. Mrs A was keen to take some form of contraception, but feared discovery by Mr A.

Allegations of domestic abuse continued to be made, including one allegation which led to Mrs A spending a night in respite care. However, the following day she refused to give an interview to the police. In May 2009 a letter written by Mr A, and signed by both Mr and Mrs A, was sent to Social Services. It stated that they no longer wanted Social Services interfering with their “sex life”. In June 2009 concerns were raised that Mrs A lacked capacity to decide whether she should take contraception: her doctor felt that she was no longer able to do so. In August 2009 there were further allegations of assaults, and Mrs A did not return to college in September.

Court of Protection proceedings

As a result the Local Authority then issued Court of Protection Proceedings in order to protect Mrs A’s interests. Following an initial hearing, in which the judge held that Mrs A lacked capacity to litigate, the Local Authority sought a Declaration that (i) Mrs A lacked capacity to decide whether to use contraception and (ii) that it would be in her interests to be required to receive it.

The medical evidence was sharply divided. Half of the medical witnesses indicated that Mrs A did not have capacity to decide on contraceptive treatment, while the other half believed that she did. A Consultant Psychiatrist, Dr K, stated that while Mrs A had a medical understanding of contraception, she lacked the necessary social understanding, namely the consequences of not using contraception. Further, he felt she was under the influence of Mr A to the extent that she could not freely weigh up the pros and cons of using contraception. As such, he did not believe she had capacity to make a decision as to its use.

Sections 1, 2 and 3 of the Mental Capacity Act 2005 were considered during the hearing. In particular, section 3, relating to “inability to make decisions” was subject to debate. Legal argument turned on the ambit of section 3(4):

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–

(a) deciding one way or another, or

(b) failing to make the decision.

The Local Authority contended that the need for a person to comprehend “reasonably foreseeable consequences” required a woman to understand and envisage what would actually be involved in caring for a child. In contrast the Official Solicitor, on behalf of Mrs A, stated that to compel a woman to be able to envisage the wider ‘social’ ramifications of childbirth was not only impractical and unsupported by authority, but would also introduce subjective decision-making as to what a woman would be required to understand. This could lead to confusion between the test for capacity with that of best interests. Rather, a person need only understand proximate medical issues, namely “the nature, purpose and effects of the treatment” (per Thorpe J, Re C Adult: Refusal of treatment (1994) WLR 290).

Mr Justice Bodey chose not to widen the test from an understanding of “proximate medical issues” to an understanding of the “social consequences”. He based his decision on two grounds: First, when making a medical decision on capacity there is generally no opportunity to carry out a proper investigation into a woman’s background or her particular circumstances.

Second, “I am persuaded that this wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep. What exactly would a woman have to be able to envisage about parenthood, who would decide, and just how accurate would her expectations have to be?”

He then emphasised section 1(4), which prohibits a finding of incapacity on the grounds that a decision would be ‘unwise’.  He then went on to say: “Although in theory the reasonably foreseeable consequences of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons. I accept the submission that it is unrealistic to require consideration of a woman’s ability to foresee the realities of parenthood, or to expect her to be able to envisage the fact-specific demands of caring for a particular child not yet conceived…to apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering.”

Mr Justice Bodey therefore held that the test for capacity should seek to ascertain a woman’s ability to understand and weigh up the proximate medical issues, including: (i) the reasons for contraception and what it does (including the likelihood of pregnancy if not used); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects; (v) how easily each type can be changed and (vi) the effectiveness of each.

In applying this test, the judge held that, although Mrs A had sufficient understanding of the medical aspects of contraception, this in itself was insufficient: it was also necessary to determine whether she could weigh up the information under s.3(1)(c). He held that, due to the “completely unequal dynamic” between Mr and Mrs A, her decision not to continue taking contraception was not one she had taken freely: as a result of the coercive pressure applied by Mr A, which was fuelled in part by the use of domestic violence, she was unable to weigh the pros and cons of the decision. He therefore found that Mrs A lacked capacity.

However, to physically coerce Mrs A to take contraception “with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life.” Instead, Mr Justice Bodey chose to make no order as to Mrs A’s best interests. He did so on the grounds that Mr A had not as yet been included in any meaningful discussion on the issue of contraception and the couple had not had any therapeutic input or been given an opportunity to understand the matter: these avenues should be pursued first. He also accepted Mr A’s assurances that he would allow Mrs A access to social workers, and therefore did not regard it as necessary to impose an injunction on him.

Comment

A number of matters are notable in this judgment. First, Mr Justice Bodey’s decision not to extend the test for “reasonably foreseeable consequences” (s.3(4))  from “proximate medical issues” to “social consequences” is surely correct. To require a person to understand the social consequences of their actions would be to undermine the principles on which the 2005 Act was founded, namely “the common law rights of bodily integrity and autonomy and the principles of capacity and best interests” (Paul Bowen, Blackstone’s Guide to the Mental Health Act 2007, para. 10.00). Given the seriousness of any decision to deprive a person of capacity, it is crucial that courts interpret the statute strictly and guard against attempts to impose additional criteria that would water down the safeguards in the Act.

Second, the question remains unanswered as to whether, and if so in what circumstances, a woman can be forced to take contraception. In this case the issue was side-stepped because Mr Justice Bodey held that there were other, less intrusive, measures that had not yet been taken. However, if these measures fail, will the Local Authority seek a declaration that contraception be lawfully imposed? The additional issue is that Mrs A’s lack of capacity appears to be transitory: her doctor had found that she had been able to consent to, or decline, his advice on contraception prior to marrying Mr A, but that she was no longer able to do so thereafter; further, the court found that it was due to Mr A’s dominating influence that she lacked capacity to make a decision on contraception.

This case therefore differs from cases concerning persons with serious, permanent learning disabilities where local authorities have sought declarations that would allow them to be sterilised (eg In Re S (Adult Patient: Sterilisation [2001] Fam 15]. It also differs from such cases because it reflects the situation experienced by women who do not lack capacity but who feel under duress from their partners not to take contraception: however, Mrs A’s particular vulnerability as an adult with significant learning disabilities puts her in a uniquely difficult situation.

The overlap of issues pertaining to mental capacity, domestic abuse and bodily integrity makes this case particularly complicated: it will be interesting to see whether it will come before the courts again in the future.

Caroline Cross is a barrister at 1 Crown Office Row (www.1cor.com). This article first appeared on the chambers’ UK human rights blog (www.ukhumanrightsblog.com).