It was widely reported in the press last week that the Court of Protection has authorised the sterilisation of a young man (DE) for non-therapeutic reasons. Although this may lie uneasily with some commentators, the rationale behind the decision was important for vulnerable adults and their carers and becomes clear in the published Judgment.
Background to the proceedings
DE is a 36 year old man with learning disabilities, who has an excellent support network and a lot of freedom. DE has a girlfriend, PQ, with mild learning disabilities and the relationship is supported, encouraged and said to be ‘remarkable and very precious.’ This is a nice sentiment, although it separates an individual with learning disabilities from people for whom having emotional and sexual relationships is the ‘norm.’
In 2010 PQ gave birth to DE’s child and care of the child was awarded to PQ’s parents, with whom she lives. Sadly, due to the turbulence arising from the issuing of Care Proceedings in respect of the child, DE’s life was turned upside down.
At that time DE did not comprehend that what he and PQ did together led to her pregnancy and the birth of a child. His parents were concerned that they might not be able to properly supervise the couple to ensure that this didn’t happen again so they sought medical advice as to whether he should have a vasectomy.
Lack of capacity to consent to sexual relations
The NHS Trust applied to the Court of Protection for determination either that DE had capacity to consent to a vasectomy, or if not, whether it would be in his best interests.
The evidence that DE lacked the mental capacity to enter in sexual relations was accepted and agreed between everyone involved, but raised further safeguarding concerns because it is unlawful for anyone to have sexual intercourse with someone who cannot consent to sexual relations.
The couple were supervised more stringently, which resulted in a reduction in DE’s independence and confidence, causing DE (and his parents) considerable stress. PQ felt the pressure so immensely that she withdrew from the relationship, completely altering the life that DE had previously known.
The relationship eventually resumed and it was clear that the couple wanted to be sexually intimate.
Following a process of working with DE he was later determined to have the mental capacity to consent to sexual relationships. This removed the safeguarding concerns and some of the restrictions on his relationship with PQ, but it was accepted by all parties that DE does not have the capacity to consent to any form of contraception. The judge did not, therefore, go into any detail about his capacity to make this decision himself.
The question then for the judge was whether it was in DE’s best interests to have a vasectomy.
As part of the assessment to determine best interests, DE’s wishes and feelings would need to be considered.
I was pleased to note that the Judge undertook a cautious, but rigorous analysis of DE’s wishes and feelings in respect of whether he wanted more children and whether he wanted to have a vasectomy.
The Judge considered whether alternative contraception could be used in DE’s best interests, and decided not.
She then looked at the consequences of a further pregnancy and what DE’s future would hold in the event that she did not order that the vasectomy was in his best interests. There would have to be a level of supervision that no one would believe to be in his interests. The Judge referred to DE’s hard earned achievements and reverting to that level of independence was a key factor at the forefront of everyone’s minds.
If the risk of pregnancy was removed, then work could be done to increase his independence to the point that it was before PQ fell pregnant.
The Judge concluded that ‘the evidence unequivocally points to an improvement in the quality of DE’s life in the event that he has a vasectomy.’
She stated that it was not a decision that the court can make lightly; ‘conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for nonmedical reasons requires strong justification’.
I am constantly urging practitioners to carry out this same review, especially where there is evidence of capacity in connected areas, such as in this case. The judge was careful to perform a balancing exercise in coming to her conclusion and was unambiguous in setting out the factors she felt relevant. The judge was able to satisfy herself that DE did not want another child and, balanced against all the factors in favour of a vasectomy, it was hard to see how she could make any different decision.
The Court of Protection, through careful analysis of the law, has supported this young man’s independent lifestyle by enabling and empowering him. Ruling that he should have a vasectomy is the one solution that will enable him to lead the independent lifestyle he previously led and maintain those relationships that are of great importance to him.