The Mental Health Trust and Another v DD (by her litigation friend, the Official Solicitor) and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cobb |
| Judgment Date | 04 February 2015 |
| Neutral Citation | [2015] EWCOP 4 |
| Court | Court of Protection |
| Date | 04 February 2015 |
| Docket Number | Case No: 12505653 |
[2015] EWCOP 4
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cobb
Case No: 12505653
John McKendrick (instructed by Bevan Brittan LLP) for the Claimants
Michael Horne (instructed by the Official Solicitor) for the First Respondent (DD)
BC (not present nor represented)
Hearing dates: 26 & 27 January 2015
| 1 Summary of Judgment | 1–13 |
| 2 Introduction & Summary of Previous Judgments | 14–19 |
| 3 The Applicants and their duties towards DD | 20–32 |
| 4 Dramatis Personae | 33 |
| 5 Background obstetric and contraceptive history | 34–38 |
| 6 Recent history (since [2014] EWCOP 13) | 39–47 |
| Capacity: section 1, 2 and 3 MCA 2005 | |
| 7 General Comments | 48–52 |
| — Diagnostic test | 53–58 |
| 8 Capacity to litigate | 59–63 |
| 9 Capacity to make decisions in relation to contraception and sterilisation | |
| — Relevant Information on which to make a decision; | 64–66 |
| — Section 3(1)(a): 'unable to understand'? | 67–69 |
| — Section 3(1)(c): 'unable to use or weigh'? | 70–75 |
| — Section 1(3): have all " practicable steps" been taken to help? | 76–77 |
| — Section 4(3): Likelihood of regaining capacity | 78 |
| — Conclusion on capacity to make decisions in relation to contraception and sterilisation | 79–80 |
| Best interests: section 1(5) MCA 2005 | |
| 10 General legal principles | 81–86 |
| 11 The risks of future pregnancies | 87–95 |
| 12 Less restrictive options: section 1(6) MCA 2005 | 96–98 |
| 13 Are separate Article 12 ECHR rights engaged in this case? | 99–102 |
| 14 Sterilisation and contraception options; the 'Balance Sheet' | 103–114 |
| 15 DD's wishes and feelings: section 4(6) MCA 2005 | 115–122 |
| 16 BC's wishes and feelings: section 4(7) MCA 2005 | 123–128 |
| 17 Conclusion on best interests | 129–131 |
| 18 Giving effect to the order: section 16(5) MCA 2005: If necessary, forcible entry into the home | 132–137 |
| 19 Date of intervention: should DD and BC know? | 138–139 |
| 20 Orders Dramatis Personae (attached) | 140–141 |
Summary of Judgment
1. These proceedings, brought in the Court of Protection, concern DD, a 36-year old woman with Autistic Spectrum Disorder and mild to borderline learning disability with a full scale IQ of 70. She also displays characteristics consistent with an attachment disorder, likely to have resulted from her experience of physical and possibly sexual abuse as a child or young person. As an adult, DD has had an extraordinary, tragic, and complex obstetric history; she has had six children who are now aged between 6 months and 12 years, all of whom are being raised by permanent substitute carers, five of them in adoptive homes. DD has no continuing contact with any of her children. DD has never demonstrated the desire or capacity to engage with the level of support which is likely to be required to assure a child's safety in her care.
2. DD is currently in a long-term relationship, which includes a sexual relationship, with BC. BC has a significant learning disability, with a full scale IQ in the region of 62, i.e. lower than DD, and displays some traits of an Autistic Spectrum Disorder.
3. Over the last nine months, the Court of Protection has been required on no fewer than five occasions to determine welfare applications under the Mental Capacity Act 2005 ("the 2005 Act") in relation to DD's capacity to make important decisions concerning her sixth and final pregnancy, and subsequent short-term contraception, specifically:
i) Ante-natal care and pre-birth scanning ( [2014] EWCOP 8);
ii) The manner and location of delivery of the baby (caesarean section in hospital) ( [2014] EWCOP 11);
iii) The administration of short-term contraception at delivery, and education about future contraception ( [2014] EWCOP 13);
iv) The administration of short-term contraception post-delivery ( [2014] EWCOP 44);
v) The further administration of short-term contraception pending this hearing (December 2014).
4. It falls to me at this hearing to determine:
i) DD's capacity to litigate in these proceedings;
ii) DD's capacity to consider, and make decisions concerning, long-term contraception and/or therapeutic sterilisation, and
iii) If lacking the relevant capacity, to determine whether it is in DD's best interests to receive long-term contraception or sterilisation, and if so, which specific therapeutic intervention.
I am further asked to consider (if I were to conclude that such were in DD's best interests) how any such medical procedure can be achieved, given DD's increasingly determined resistance to professional and/or medical advice and support. DD's current opposition to professional intervention in her life causes the Applicants to apply, once again (as they have at previous hearings), for authorisation (in each case for as short a time as is necessary, and only if necessary) to deprive DD of her liberty, to use restraint, and further to obtain permission to intrude into the privacy and sanctity of her home to remove DD to hospital for the treatment proposed.
5. The ethical, legal and medical issues arising here are self-evidently of the utmost gravity, engaging, and profoundly impacting upon DD's personal autonomy, privacy, bodily integrity, and reproductive rights. The Applicants concede, through their counsel, that the relief which they seek in these proceedings amounts to an exceptional interference with DD's right under Article 8 of the European Convention on Human Rights (' ECHR') to respect, in particular, for her private life. That concession is, in my judgment, rightly made. In this respect, I wish to emphasise three important points:
i) The Court of Protection will intervene in the life of a person who lacks capacity only where it is demonstrated that it is in the best interests of the vulnerable person to do so. Each case will be considered on its own facts;
ii) Those who lack capacity have the same human rights as everyone else, and are entitled to enjoy those rights without discrimination on account of their lack of capacity. The ECHR nonetheless recognises that it may be justifiable to interfere in their private lives, and even deprive them of their liberty, in certain circumstances;
and
iii) This is, in my judgment, an exceptional case on its facts; the Applicants seek a range of relief which is likely to arise only in the most extreme circumstances.
6. Any proposal for significant, life-changing surgery in respect of a person who lacks capacity will inevitably be (as it has been in this case) extremely carefully scrutinised, and only authorised where it is clearly demonstrated to be necessary, proportionate and 'best' for the individual involved. In this exercise, the views of the person concerned, of those close to them, and of the professionals will be considered with care; steps will be taken to assist the vulnerable person to make the decision for themselves. The court should (as I have in this case) always have regard to the less restrictive way of achieving the ultimate objective.
7. I have set out my reasons for my decision fully in the judgment below. I have concluded, on what is clear evidence, that DD lacks capacity to litigate; I have further concluded that she lacks capacity to make decisions about contraception and sterilisation, notwithstanding the considerable efforts which have been made to enable her to make the relevant decisions. Moreover, I have reached the view, though not without the most thorough consideration of the complex issues involved, that it is in her best interests that she be sterilised; the Applicants propose that this be achieved by laporoscopic application of Filshie clips across the fallopian tubes to occlude them, while DD is under general anaesthetic.
8. This case is not about eugenics. This outcome has been driven by the bleak yet undisputed evidence that a further pregnancy would be a significantly life-threatening event for DD. The Applicants' obstetric, gynaecological and contraceptive experts strongly recommend this treatment for DD, jointly expressing themselves in these stark terms:
" The risk to [DD] of a future pregnancy, especially if concealed, is highly likely to lead to her death."
9. Against the unusual background of multiple births by caesarean section (four of DD's six children have been born by caesarean section) and repeat pregnancies in a short space of time (four children have been born in the last five years), the evidence, presented by both the Applicants and the Official Solicitor, specifically reveals that a further pregnancy would:
i) Place dangerously unsafe pressure on DD's uterine wall which would be likely to rupture in child-birth (if not during the pregnancy) causing the almost certain death of the infant, and significant intra-abdominal haemorrhaging of DD which would materially threaten her own life. The uterine wall was noted during the last caesarean section procedure performed in July 2014 (pursuant to my earlier order) to be " tissue-paper thin" with the baby visible through it; this was a most unusual finding, according to Consultant Obstetrician & Gynaecologist A (Mr. A);
ii) Pose a significant risk of either placenta accreta or placenta praevia; placenta accreta is a condition in which the placenta is morbidly attached to the uterine lining having invaded into the deeper muscle. Uterine scarring due to caesarean sections predisposes a woman to this condition. If DD were to suffer placenta accreta, it would inevitably lead to massive haemorrhage at the point of delivery of her infant. Placenta praevia involves a low-lying placenta located in the lower segment of the uterine cavity. If DD were to...
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