Re A (Medical Treatment: Male Sterilisation)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE PRESIDENT,LORD JUSTICE SCHIEMANN,LORD JUSTICE THORPE,the President
Judgment Date20 December 1999
Judgment citation (vLex)[1999] EWCA Civ J1220-29
Docket NumberCase No: FAFMF/1999/0925/B1
Date20 December 1999

[1999] EWCA Civ J1220-29

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR. JUSTICE SUMNER

Before:

The President

Lord Justice Schiemann and

Lord Justice Thorpe

Case No: FAFMF/1999/0925/B1

R-B (A Patient)
(By His Mother and Litigation Friend)
Appellant
and
The Official Solicitor
Respondent

Allan Levy Q.C. and Miss Jane Mishcon (instructed by Messrs. Cook Taylor for the Appellant)

Robert Francis Q.C. (instructed by The Official Solicitor for the Respondent)

1

Monday, 20 December 1999

THE PRESIDENT
2

A is 28 years old. He has Down`s Syndrome and has been assessed to be on the borderline between significant and severe impairment of intelligence. He lives with his mother aged 63 who has cared for him since birth with brief interludes of respite care. On his behalf she has applied to the High Court for a declaration that:�"the operation for sterilisation proposed to be performed on A by way of vasectomy is in his best interests and can lawfully be performed on him despite his inability to consent to it." The application is made under the inherent jurisdiction of the High Court and in accordance with the procedure laid down by the House of Lords in re F [1990] 2AC1 and the subsequent practice note issued by the Official Solicitor in June 1996. This practice note stated that the Official Solicitor should be made the defendant in sterilisation applications.

3

The application came before Sumner J on the 30 th July 1999. It was opposed by the Official Solicitor. Sumner J refused the application for a declaration and, since it appears to have been the first case seeking the court`s approval for sterilisation of a male patient, gave permission to appeal.

4

The judge found that A had no understanding of the link between sexual intercourse and pregnancy and that A was and would remain incapable of understanding the purpose of the proposed operation and would not be capable of giving or refusing consent to it. He is however sexually aware and active. He masturbates when he sees pictures of nude women. He has been involved in affectionate incidents with women of a sexual kind. He is fertile and might be physically capable of fathering a child.

5

The judge set out the daily routine arranged for A by his mother. He goes to the day centre three days a week. On day 4 he goes to a literacy centre and he also attends a club for people with disabilities. He has had jobs. He can learn a routine but does not follow it. He needs to be reminded daily in relation to all activities. He does not see danger nor anticipate results. He has no idea of money or time. He is allowed to travel short distances on his own and can manage simple journeys and can go to shops. He is very vulnerable because he is friendly and easily led. He enjoys the company of other people and likes to be close to women and to kiss them. The mother is on her guard against inappropriate behaviour. There were instances at the day centre of such inappropriate behaviour which were stopped. The mother would not want him to have a casual sexual relationship in her home but it might be different if it was a stable relationship.

6

The evidence by the mother disclosed that she has provided him with a high degree of care and supervision. Her health however is not good and she is shortly to go into hospital for operations to her back and hip. That has highlighted the need to make sensible plans for his future. She fears that she is unlikely for much longer to be able to continue to give him the same high level of supervision that she provides at present. She has ensured a suitable degree of supervision over him at the day centre which he attends. The mother`s major concern is that, when A moves to local authority care, in the absence of an operation to sterilise, her son might have a sexual relationship which might make the woman pregnant. She very much disapproves of a man walking away from responsibility when responsible for the birth of a child. In the case of A he would not understand the consequences. She feels very strongly that the operation is necessary and would be upset if it did not take place:

7

"She said she would feel extremely disappointed because A's future had not been considered as such. It is the risk that he could suffer real upset""

8

The judge accepted the evidence of the mother. He said that the mother gave her evidence with care and compassion

9

""Her standard of care, the sincerity of her application and her good sense in planning for the future have rightly not been questioned."

10

The application was supported by a distinguished consultant psychiatrist, Dr Campbell who gave evidence in re F, (above). He provided two reports and gave oral evidence. He saw A in 1993 and in 1998. He confirmed that A would be incapable of giving consent to the operation. He supported the proposed operation since A would not be able to use contraceptives. He recognised that A enjoyed close physical contact and considered that, with a lesser degree of supervision in the future, he would have the ability and would be more likely to have the opportunity to have a full sexual relationship with a woman which might place her at risk of pregnancy. He felt that it would be unreasonable so to restrict A`s life as to deprive him of the opportunity of closer friendships with women. It became apparent from his oral evidence that he believed that the current degree of supervision of A was largely due to efforts to prevent any possibility of a sexual relationship and that the effect of sterilisation would be to give him a greater degree of freedom. He was clear that A had indicated no when asked about an operation, but it was not an informed no since he could not understand the reason for the operation.

11

There was also evidence from those who care for A during the week at the day centre and from two consultant urologists. Both surgeons would prefer a general anaesthetic if the operation were to be performed. There was some hesitation expressed about carrying out the operation against A`s wishes. The judge was however satisfied that, if the court gave its approval, a competent surgeon would agree to carry out the operation. It was not without risk but was unlikely to have any harmful side-effects and would in all probability achieve sterilisation.

12

The Official Solicitor called Dr Holland, a psychiatrist who is adviser to the Down`s Syndrome Association. He saw A in 1998. He did not share Dr Campbell`s support for the proposed operation. He considered that A was unlikely to have engaged or to be engaging in sexual intercourse or to have any idea of its nature. It was likely that the women with whom he came into contact would themselves be vulnerable and would also be under a degree of supervision such as to inhibit opportunity. The actual risk of sexual intercourse was very small. He did not consider that it would be in A`s best interests to have the operation at this time. There were other concerns that might arise from sexual intercourse, such as sexually-transmitted diseases in respect of which a vasectomy would not assist. He recommended that A should receive advice that would be broader in scope than the protection from a vasectomy, for instance, about the emotional side of relationships and that they can come to an end.

13

The judge directed himself, correctly, that

14

"" the application [for a declaration] will be granted when it is in the best interests of the patient concerned, it will be refused when it is not.""

15

He held that, while in the care of his mother, A was unlikely to enter into any casual sexual relationship with a woman. The risk was very low indeed. If a pregnancy did occur, A would not understand its implications and would not be affected by it unless he became the object of criticism. The judge considered that to be unlikely and if it happened the effect would be minimal. He considered the possibility of the birth of a child of whom A was the father and that he might know and become bonded with the baby who was thereafter removed. He was satisfied that the risk of this eventuality was speculative. He considered that the possibility of a stable relationship would not be prevented by the absence of a vasectomy. He concluded

16

"I do not see that the advantages to A of a vasectomy are clear. It will not protect him from being exploited or from a risk of sexually transmitted diseases. It will not protect him from casual relationships which his mother would not like; it only prevents one possible but important result. It follows that because there are other risks involved in any sexual relationship that A may have with a young woman, the degree of vilgilance and supervision is not likely significantly to decrease, whether he is or is not at home. �.Thus I do not accept that the operation would add value to the quality of A`s life to any significant extent. �. Faced with the alternative of an invasive operation not without risk, I do not regard the risks that would otherwise face A as warranting such a course, nor the advantages to A as sufficiently positive. The operation is, in the words of Lord Goff of Chievely in re F, not essential to A `s future well-being.""

17

He did not rule out the possibility that in the future the circumstances might change but the risks would have to be clear and the benefits well-established.

18

On appeal Mr Levy QC, on behalf of A, argued that sterilisation in this case ought to be seen as a form of contraception.

19

He raised 4 main points.

20

1. A had a concerned and caring mother who was planning for A`s future. This was an important juncture in his life and...

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