A Local Authority v A and Another (Test for Capacity as to Contraception)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Year | 2011 |
| Date | 2011 |
| Court | Court of Protection |
Vulnerable adult – Capacity – Test – Decision on whether to use contraception – Husband preventing wife with learning difficulties from having contact with adult social services – Wife refusing to continue having monthly injection for contraception – Wife’s college course co-ordinator reporting that wife had made allegations of domestic violence and asked about having coil fitted – Local authority seeking interim declarations in context of ‘capacity’ and ‘best interests’ proceedings in Court of Protection – Wife claiming in evidence that she wanted a baby and that no domestic violence had occurred – Whether wife having capacity to decide whether to use contraception – Whether in wife’s best interests for her to be required to receive contraception – Whether appropriate to grant injunction against husband pursuant to court’s inherent jurisdiction – Mental Capacity Act 2005, ss 2, 3.
Mrs A, who was born in 1980, was assessed by experts in learning disability as having a Full Scale IQ of 53, meaning that her general cognitive ability was in the extremely low range of intellectual functioning and that her overall thinking and reasoning abilities exceeded those of only approximately 0.1% of adults of her age. She became pregnant in 2003 and, in July 2004, underwent a pre-birth assessment which concluded that she did not have the capacity to meet the needs of the child, which was accordingly removed at birth and made the subject of care and adoption orders. In 2005, she gave birth to another child who was removed from her care in the same way. By 2007, she had met Mr A, whose functioning was in the extremely low range with a significant impairment of intellectual ability and limited literacy skills, such that he was less able than 99% of the population of his age. Upon leaving her adult family placement in order to live with Mr A, Mrs A was taking contraception by a monthly depot injection, seemingly with Mr A’s support. In June 2008, however, she missed her injection. Although she had previously had no difficulty in accepting the help and support of the adult social services, Mr A began to make it clear in trenchant terms that social services were not welcome at the house, with the result that his wife became increasingly inaccessible. In October, the co-ordinator of the college course which Mrs A attended (Miss S) informed her social care assessor of concerns about Mr A’s controlling behaviour; Mrs A had allegedly told college staff that she was not allowed to speak to
social services and that Mr A had been hitting and kicking her. Although Mrs A claimed that she did not want social services forcing her to have the injection as she and Mr A wanted a baby, she subsequently asked Miss S if she thought that Mr A would notice if she had a coil fitted. She also stated that Mr A had informed her that social services could not take a baby away from them as they were married. As a result of the allegations reported against Mr A, the relevant local authority triggered its ‘safeguarding’ procedures. By an interim application made in the context of ‘capacity’ and ‘best interests’ proceedings in the Court of Protection, the local authority sought declarations (i) that Mrs A lacked capacity to decide whether to use contraception; and (ii) that it would be in her interests for her to be required to receive it. Whilst the authority reserved the right to argue that the administration of such contraception should, if necessary, be achieved by orders authorising the use of force, restraint and anaesthesia, it merely sought a declaration that it would be in Mrs A’s best interests to receive contraception subject to her consent. The Official Solicitor, who acted as Mrs A’s litigation friend, submitted that such an order would be ‘meaningless’ because no order would be required if Mrs A consented and, if she did not, the order would achieve nothing. It was not disputed that, for the purposes of s 2 of the Mental Capacity Act 2005, Mrs A suffered from ‘… an impairment of or a disturbance in the functioning of the mind or brain’, or that she met the first part of the test for incapacity under that section. An issue arose, however, as to s 3 of the 2005 Act, which provided ‘(1) … a person is unable to make a decision for himself if he is unable—(a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision … (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 submitted that ‘the reasonably foreseeable consequences’ were wide enough to import a requirement that the woman concerned was able to understand and envisage (if she decided against contraception and became pregnant) what would actually be involved in caring for and committing to a child. The Official Solicitor, by contrast, submitted that an approach which required a woman to be able to envisage the wider ‘social’ ramifications of possible childbirth was, inter alia, impractical and likely to introduce subjective decisions, with a danger of confusing capacity with best interests. During oral evidence, Mr A expressed his willingness to allow Mrs A to have free contact with those professionals who had the skills to advise her in an ability-appropriate way about contraceptive issues, provided that he was involved as well, either concurrently or separately. He and Mrs A denied that any domestic violence had taken place, and Mrs A stated that she did want a baby. The local authority informed the court that if Mrs A became pregnant there would be a pre-birth parenting assessment of Mr and Mrs A as a couple, and that not even the commencement of care proceedings was certain.
Held – (1) The public policy/practicality considerations militated against enlarging the test of capacity from (a) whether a woman understood the immediate medical issues surrounding contraceptive treatment (‘the proximate medical issues’) to (b) whether she was also capable of envisaging the wider practicalities of bringing up a child. The test, whatever it was, had to be applied daily in surgeries and family planning clinics, during appointments lasting perhaps less than half an hour. The vast majority of decisions on capacity got nowhere near a court and, absent legal proceedings, there was no opportunity for a meaningful investigation as to the woman’s background or the accuracy of what she told the practitioner. Furthermore, the wider ‘social consequences’ 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. It was 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 (let alone born) with unpredictable levels of third-party support; such matters were not reasonably foreseeable, being too remote from the medical issue of contraception. 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. The test for capacity should thus be so applied as to ascertain the woman’s ability to understand and weigh up the proximate medical issues, including: (i) the reason for contraception and what it did (which included the likelihood of pregnancy if it was not in use during sexual intercourse); (ii) the types available and how each was used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they could be dealt with; (v) how easily each type could be changed; and (vi) the generally accepted effectiveness of each. It was not necessary to ask questions as to the woman’s understanding of what bringing up a child would be like in practice; nor to attempt an opinion as to how she would be likely to get on, or whether any child would be likely to be removed from her care. On the evidence in the instant case, Mrs A understood sufficient about the medical aspects of contraception. However, s 3(1)(c) of the 2005 Act also required the ability to use or weigh that information. In view of the completely unequal dynamic in the relationship between Mr and Mrs A, the decision not to continue taking contraception was not the product of Mrs A’s own free will; she was unable to weigh up the pros and cons of contraception because of the coercive pressure under which she had been placed both intentionally and unconsciously by Mr A. For those reasons, Mrs A currently lacked capacity to take a decision for herself about contraception (see [60]–[61], [63]–[64], [66], [73], below); Re B (adult: refusal of treatment)[2002] 2 FCR 1 considered.
(2) In the instant case, it was accepted by the local authority that if Mrs A became pregnant, there would be a pre-birth assessment of her and Mr A,
and that it was impossible to say what would emerge. In those circumstances, striking a balance of advantage and disadvantage, no order about contraception was yet justified. Such an order could only be made on the basis of a gut-feeling that it would be ‘kinder’ to Mr and Mrs A if Mrs A were to use contraception, which was not an acceptable approach. Even if there were any point in the order sought, it was inappropriate for the court to intervene at a stage when Mr A had not yet been included in any ability-appropriate discussion or help on the contraception issue; when Mr and Mrs A had not yet had any therapeutic input as a couple about it, nor about their relationship generally; and when they had not yet had the chance...
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