Re A (Capacity: Refusal of Contraception)

JurisdictionEngland & Wales
JudgeMr Justice Bodey
Judgment Date24 June 2010
Neutral Citation[2010] EWHC 1549 (Fam)
Docket NumberCase No: 11753201
CourtFamily Division
Date24 June 2010

[2010] EWHC 1549 (Fam)

IN THE HIGH COURT OF JUSTICE

COURT OF PROTECTION

Before: Mr Justice Bodey

Case No: 11753201

Between
A Local Authority
Applicant
and
Mrs A, by Her Litigation Friend, the Official Solicitor
First Respondent
and
Mr a
Second Respondent

Ms Nageena Khalique represented the Applicant Local Authority

Mr Joseph O'Brien represented Mrs A by her Litigation Friend the Official Solicitor

Miss Najma Mian represented Mr A (The identities of the instructing solicitors are omitted to avoid identification of the parties.)

Hearing dates: 17 th to 21 st May 2010

APPROVED JUDGMENT

Mr Justice Bodey

A. INTRODUCTORY

1

By this interim application made in the context of ‘capacity’ and ‘best interests’ proceedings in the Court of Protection, a Local Authority seeks Declarations (i) that a young married woman whom I will call “Mrs A” lacks 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 Local Authority reserves 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 seeks a Declaration for now that it would be in Mrs A's best interest to receive contraception, subject to her consent. Both Mr and Mrs A (the latter through Official Solicitor, her Litigation Friend) maintain that Mrs A has capacity to decide not to use contraception and they oppose the Declarations sought.

2

The application raises issues as follows.

(i). What is the test for determining whether a woman has capacity to make decisions as to contraceptive treatment?

(ii). Applying that test, does Mrs A lack that capacity?

(ii). If so, is it in her best interests that an order be made for her to receive contraceptive treatment?

(iv). Should the Court make orders against Mr A forbidding him to interfere with arrangements put in place by the Local Authority designed to assist Mrs A in reaching a decision as to whether or not to use contraception?

3

Both Art 8 of the ECHR (‘respect for private and family life') and Art 12 (‘founding a family’) are engaged and the above issues raise important questions about state interference in matters of personal and family autonomy. This application was therefore listed for hearing by a High Court Judge. I heard the case between 17 th and 21 st May 2010 and gave my decision, including simplified reasons, on 11 th June 2010 with Mr and Mrs A in attendance. This Judgment contains my full reasons and may be reported as anonamysed

4

Mrs A is aged 29, having been born towards the end of 1980. She has had two children removed from her at birth. There is no evidence before me that the processes of pregnancy or birth as such caused her physical harm or mental distress. She has been assessed in and since 2002 by experts in Learning Disability as having a Full Scale IQ of 53. This means that her general cognitive ability is in the extremely low range of intellectual functioning and that her overall thinking and reasoning abilities exceed those of only approximately 0.1% of adults of her age. Therefore, according to a Clinical Psychologist's report of October 2002, she “… may experience great difficulty in keeping up with her age-peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities, and may experience significant difficulties across all intellectual domains.” For the purpose of S.2 of the Mental Capacity Act 2005 (below) the Official Solicitor who acts as Mrs A's litigation friend does not dispute that she suffers from “… an impairment of or a disturbance in the functioning of the mind or brain”, or that she meets the first part of the test for incapacity under that section, the ‘diagnostic’ test.

5

Mrs A met Mr A in or about the Autumn of 2006 and they were married July 2008. He too has a Learning Disability, having a full scale IQ of 65, putting him within the lowest 1% of the population, with a significant impairment of intellectual functioning. They live together in a small town in the Midlands. Neither works in the commercial sense, but each is involved in voluntary work locally. Mrs A's place of work features in the case and, to avoid identification, I will call it her “place of voluntary work”.

6

An important aspect of the case is to gain an insight and understanding of the relationship dynamic between Mr and Mrs A. This is because one issue for determination is whether he places her under so much pressure to refuse contraception that her capacity is impaired and / or that she is unable to exercise her free will in taking a decision for herself. This has required consideration of a large volume of evidence on the point, which appears greatly summarised in Parts C and D. All three parties have been represented before me, the Local Authority by Ms Khalique; Mrs A by Mr O'Brien instructed by the Official Solicitor; and Mr A by Miss Mian. I am grateful for the sensitive way they have conducted the hearing.

B. MRS A's TWO CHILDREN AND HER BACKGROUND BEFORE SHE MET MR A

7

When Mrs A was 11, a Clinical Psychologist spoke of her suffering Atypical Autism, communication difficulties, and marked problems with empathy and emotional expression. She was attending a Special Learning Disability school, where her progress was slow and she was on occasions disruptive. By the time she was 15, in 1996, records spoke of her having ‘moderate severe learning difficulties’. She was brought up in a loving family by her own father and mother, which is thought to be why she functions as effectively as she clearly does. Unfortunately her father died young and Mrs A's challenging behaviour increased. In 2002, aged 21, she moved into a flat of her own in the area of a neighbouring Local Authority (“Local Authority B”) with support from the Community Living Team (“CLT”).

8

In May 2003 Mrs A's mother emigrated, after which concerns for Mrs A increased. A Risk Assessment in December 2003 spoke of her ‘struggling to manage generally’, in spite of daily support given by the CLT. The identified risks were of physical and psychological harm, sexually transmitted disease, pregnancy and general exploitation. In January 2004, a Social Work assessment recorded that Mrs A thought she was managing alright and ‘…does not appear to understand concerns’. It referred to her very good verbal communication skills and her ability to hide the fact that her understanding could be poor in more complex situations. A semi-supported placement was recommended.

9

In fact, unbeknown to the professionals, Mrs A was by then already pregnant. The father was believed to be a young asylum-seeker. This led to an assessment in March 2004 by a Doctor S, Consultant Psychiatrist in Learning Disability. He found her to have a good understanding of the process of delivering a baby. He reported: “…She described the process very accurately to me. She understands the needs of a baby after it is born, including its needs for feeding, changing and comforting. She said she had had training in the resuscitation of babies and gave me a highly accurate description of the resuscitation procedure for a young baby. She is very clear that she wishes to complete her pregnancy and keep the child and care for it. …She became upset and angry when [the possibility of adoption] was discussed. She says that she would be a good mother and enjoys caring for children. She currently works voluntarily in a play group and has held this job for two years”. Dr S considered it likely that Mrs A would experience ‘severe distress’ if a termination of pregnancy were pursued. He felt though that with discussion and education, she would be able to understand the process of a termination and might be able to weigh the relative risks and benefits so as to come to her own informed decision.

10

In the event, termination was not pursued and in July 2004, when 7 months pregnant, Mrs A underwent a Pre-birth Assessment as to her likely parenting abilities. It was very negative. It spoke of Mrs A displaying fear and incomprehension about what was happening to her body and of her lacking knowledge of how babies are born. She was frightened by birth videos. Clearly, that information does not sit easily with that recorded by Dr S only 4 months previously. During the assessment, Mrs A was seen handling a baby-like doll in very inappropriate ways, including shaking and kicking it. The conclusion of the social worker was that: “…. her learning disability means she lacks the insight to meet her baby's basic care needs without intensive support …The baby would not be able to develop intellectual or social skills through interaction with her, due to her flat responses and lack of emotional warmth…[She can]…achieve a good standard of housework, personal hygiene, initial social presentation and cooking … [but she] … does not have the capacity to meet the baby's needs”.

11

In September 2004, Mrs A gave birth to her first child, a daughter. It is recorded that the baby was removed at birth, made the subject of a care order and later adopted. Subsequently, one or two other relationships followed with men who were regarded by the professionals as unsatisfactory. Mrs A became pregnant again and on an unknown date in 2005, gave birth to her second child, a boy. He too was removed at birth, made the subject of a care order and later adopted.

12

Thereafter, the CLT of Local Authority B continued providing daily support for Mrs A, who was by then living in a supported living environment. They also arranged for her to be reviewed by a Dr D, Associate Specialist in Learning Disability, who again assessed her...

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