A recent Court Of Protection case (The Mental Health Trust and others v DD and another  EWCOP 4) illustrates how the Court will apply the relevant provisions of the Mental Capacity Act 2005 (MCA) and of the European Convention on Human Rights (ECHR) in determining whether a person has capacity, and in deciding what action should be taken in a person’s best interests if he or she is found not to have the capacity to make a decision about a particular course of action.
The case in question concerned a 36 year old woman, DD, who had been diagnosed with Autistic Spectrum Disorder and mild to borderline learning difficulties. DD had given birth to six children all of whom had been placed with permanent substitute carers and with whom she had no ongoing contact. DD was in a long-term relationship with BC and any future pregnancy for DD was regarded as being “highly likely to lead to her death” due to medical reasons, DD’s habit of concealing her pregnancies and her and BC’s resistance to medical and professional support.
Cobb J was asked to determine DD’s capacity to litigate, her capacity to make decisions about long-term contraception or sterilisation and, if she was found not to have capacity, to decide whether it was in DD’s best interests to receive long-term contraception or sterilisation. It was noted by Cobb J that the relief applied for represented exceptional interference with DD’s rights under Article 8 of the ECHR to respect for her private life.
It was considered by those caring for DD that the best options were either long-term contraception, in particular an Inter-Uterine Device (IUD), or sterilisation. DD had been willing to use contraception in the past but had always rejected an IUD. Cobb J emphasised that the decision made by him would be decision-specific and, in accordance with section 1 MCA, would be in DD’s best interests.
The court’s decision
Under section 2 MCA, a person is deemed to lack capacity if he is unable to make a decision because of “an impairment of, or a disturbance in the functioning of the mind or brain”. After considering the available medical evidence, and in particular the medical opinion that DD’s autism caused her to have an “extremely rigid style of thinking with difficulty in cognitive flexibility,” Cobb J decided that DD’s autism amounted to such an impairment or disturbance.
Section 3 MCA provides that a person is unable to make a decision for the purposes of section 2 if he or she is unable to understand the information presented in respect of that decision, to retain it or to use or weigh that information as part of the decision- making process. As DD was felt unable to use or weigh legal advice to make decisions with regard to litigation it was decided that she had no capacity to litigate.
Cobb J also found that, although DD had a basic understanding of the purpose of contraception and the reproductive process, she did not understand the medical importance for her of not having a further pregnancy. Moreover, it was decided that DD was unable to use or weigh information with regard to contraception or to hold the negative and positive factors of each potential form of contraception in mind. Cobb J found that, pursuant to section 1 MCA, all practicable steps to help DD make a decision ,and to engage in the decision making process, had been taken but without success. On the basis of the evidence before him Cobb J therefore decided that DD did not have capacity to make decisions about contraception and sterilisation.
DD’s best interests
Having decided that DD lacked the requisite capacity, the court then had to make a decision on DD’s behalf about her long-term contraception which decision, in accordance with section 1(5) MCA must be in her best interests.
The court acknowledged that DD’s best interests and her human rights, particularly her right to a private life under the Article 8 of the ECHR were “inextricably bound up.” Cobb J stated that he could only interfere with those rights “if…..satisfied that [it was] necessary and in accordance with the law for the protection of DD’s health.” The health implications were clear from the fact that the clinical risk of a fatal outcome to a further pregnancy was assessed as being at least 30% or as high as 50%. After a review of the available options, Cobb J stated that he felt, in accordance with section 1(6) of the MCA, that sterilisation was the least restrictive of those options as it freed DD from continual intrusive medical intervention.
On the balance sheet approach, the court found that the factors in favour of sterilisation outweighed those in favour of an IUD considerably. There were two factors of “magnetic” importance which were that future pregnancies posed a high risk to DD’s life, and sterilisation would allow her to be left alone, as she fervently wished, free from future medical intrusion.
Consequently, the court authorised sterilisation with one predominant purpose “to preserve DD’s life”. It also made orders that DD should be forcibly removed from her home, and restrained, if this were necessary to carry out the procedure.
This decision is bound to attract attention because of the serious nature of the decision made on DD’s behalf, to remove permanently the fertility of a woman of child-bearing age. Cobb J was scrupulous in his application of the relevant provisions of the MCA and the ECHR and clearly acknowledged the import of the decision that was being made on DD’s behalf. He acknowledged the fact that strenuous efforts had been made by the professionals involved to engage DD in the decision-making process, sadly without success.
The basis of the court’s decision was clearly to preserve DD’s life and it was emphasised that there was no social purpose behind the decision. By comparison, if a court application had been made in respect of DD’s partner, who had significant learning disabilities, then it is highly unlikely that a similar decision would have been made as, with no risk to his life, such a decision could not be seen to be in his best interests.