NHS Trust v DE  EWHC 2562 (Fam) 16 August 2013 – read judgment
For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.
The NHS Foundation Trust made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability. After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.
But things changed dramatically for the worst in 2009, when PQ became pregnant and had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.”
The issues before the Court of Protection
DE does not have the capacity to make decisions as to use of contraception. His parents, with whom he is living, formed the view that the best way, in his interests, to achieve DE’s wish not to have any more children and to restore as much independence as possible to him was by his having a vasectomy. In this context the question before the court was whether to grant the declarations sought for, namely that:
a) DE does not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure;
b) That it is lawful and in DE’s best interests that he should undergo a vasectomy;
c) It is lawful for the NHS Trust to take any steps which are medically advised by the treating clinicians at the trust responsible for DE’s care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.
In considering these questions, Eleanor King J had to bear in mind the fact that DE did not have capacity to consent to sexual relations, and therefore it followed that it would be unlawful for anyone to have sexual intercourse with him. Serious sexual safeguarding issues therefore arose, threatening his stable and previously loving relationship with PQ, a relationship which, according to his needs counsellor, was “very important” to him. This supervision also compromised his hard-won and fragile sense of autonomy. A clinical psychologist who had worked with DE was of the opinion that he might be able to attain capacity to enter into sexual relations in time if the right sort of direct work was done with him. This suggestion clearly had a significant impact on the ultimate issue as to whether or not it was in DE’s best interests to have a vasectomy.
The Official Solicitor (on DE’s behalf) opposed a vasectomy being carried out. He regarded the discomfort of the surgery and the small risk of long term pain as outweighing the benefits identified by the witnesses who addressed DE’s best interests.
The Court proceeded on the basis that DE did have capacity to enter into sexual relations, but did not have capacity to consent to contraception. The fact that DE did not have the capacity to consent to a vasectomy necessarily coloured the court’s approach. There was some argument as to DE’s true wishes, one expert suggesting that there was a distinction between parenting of a child and ‘conceiving’ or fathering a child, arguing that whilst DE may not want the responsibility to parent a child, he may wish one day to father another child; “that is to say to conceive, but not parent a baby”. Thus, said the expert, a vasectomy would deprive DE of his right to father a child.
The Court’s decision
This approach was firmly rejected by the judge, who took the view that the risk of an unwanted pregnancy would have such a deleterious effect on DE’s life – intrusive supervision, lack of independence, and the compromising of his relationship with PQ – that a vasectomy would be “overwhelmingly in DE’s best interests”. Taking into account the effect of a pregnancy on DE’s autonomy, his relationship with his parents, and his private life, she granted declarations that it would be lawful and in DE’s best interests to undergo a vasectomy with the sedation and surgical procedures that that involved.
The judge was at pains to stress that this kind of “best interests” determination under Section 4 of the Mental Capacity Act 2005 is acutely fact sensitive and in no way creates a precedent for future cases. But the fact that sterilisation was ultimately ordered is an important step in recognising that there are two sides to the right to autonomy (whether embodied in Article 8 or the common law in general). One is the right to respect for family life, which arguably implies the right to found a family (although genetic parenthood alone is not sufficient: see Lebbink v Netherlands (2004). On the other is the right to respect for private life, encompassing as it does the right to personal autonomy and the right to conduct one’s life in a manner of one’s choosing; this includes respect for a person’s choices relating to their own body and control over their physical and psychological integrity (Pretty v United Kingdom (2009)).
It is encouraging, to say the least, that the courts are prepared to give such weight to the liberty of individual choice in these circumstances. Maybe one day the “autonomy” side to Article 8 will prevail in end of life disputes, where the right to die with dignity is posited against the obstacles erected against it by ill-founded fears of abuse and runaway euthanasia (see our post on the recent Appeal Court decision in Nicklinson here and discussion of the broader issue here).
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