The Mental Health Trust and Others v DD (by her litigation friend, the Official Solicitor) BC (Number 2)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cobb |
| Judgment Date | 15 July 2014 |
| Neutral Citation | [2014] EWCOP 13 |
| Docket Number | Case No: 12505653 |
| Court | Court of Protection |
| Date | 15 July 2014 |
[2014] EWCOP 13
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 Applicants
Michael Horne (instructed by the Official Solicitor) for the First Respondent, DD
The Second Respondent, BC, was neither present nor represented
Hearing dates: 11 July 2014
Table of contents:
| 1 | Introduction | 1–3 |
| 2 | The hearing | 4–6 |
| 3 | Summary of decision | 7 |
| 4 | Recent events | 8 |
| 5 | Judgment [2014] EWCOP 11 | 9 |
| Capacity | ||
| 6 | Interim declaration as to capacity to make decisions in relation to contraception | 10–23 |
| Best interests | ||
| 7 | The Applicants' plan in relation to | |
| ? | Education and capacity assessment | 24–28 |
| ? | Short-term contraception | 29 |
| 8 | DD's wishes and feelings | 30–33 |
| 9 | Is it in DD's best interests for DD to receive education and then a full assessment of her capacity to make decisions in relation to contraception? | 34–36 |
| 10 | Is it in DD's best interests that the Applicants be authorised to take such necessary and proportionate steps to give effect to the best interests declaration above, to include forced entry and necessary restraint? | 37–41 |
| 11 | Is it in DD's best interests that she should be administered short-term contraception at this stage? | 42–44 |
| 12 | If so, what form of contraception? | 45–47 |
| 13 | Conclusion | 48–50 |
Introduction
By judgment dated 4 July 2014 (see The Mental Health Trust, The Acute Trust and the Council v DD (By the Official Solicitor) & BC [2014] EWCOP 11) I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section.
Further to a scheduled hearing which took place in the following week, I now consider:
i) Whether it is in DD's best interests that the Applicants should be authorised:
a) to provide DD with education in relation to contraception, and then
b) to assess her capacity to make decisions in relation to contraception;
This falls for consideration in light of my earlier finding [2014] EWCOP 11 (§87) that there is reason to believe that DD lacks the capacity to consent to an assessment of her capacity to make decisions in relation to contraception;
ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment;
iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005: ('MCA 2005')) that DD currently lacks the capacity to make decisions in relation to contraception;
iv) If there is reason to believe that she currently lacks capacity (in relation to (iii) above), whether it is in DD's best interests that a short-term contraception be administered by way of injection (and authorise the Applicants' staff to do so).
I remain acutely aware of the extraordinary interference with DD's private and family life, her freedoms and her liberty which flow from the steps which I earlier authorised. In determining this application, I recognise that additional significant interference into her life is contemplated; this application, as the last, engages vividly DD's rights under article 3, article 5, and article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( ECHR).
The hearing
Neither DD nor BC attended this hearing. I am satisfied that the Applicants have taken appropriate steps to advise them of the date, time and location of the hearing, having visited them at their home, and having hand-delivered a letter containing the relevant information. DD and BC have adequate literacy skills to read and understand the correspondence; they have however made clearly known their attitude to professional intervention generally. It is, regrettably of little surprise that they do not engage with this court process.
For the purposes of determining the issues outlined in §2 above, the Applicants have filed further written evidence following my earlier judgment. At this hearing, I heard oral evidence again from Mr. A (Consultant Gynaecologist and Obstetrician), and Dr. F (Community Consultant Psychiatrist for adults with learning disabilities); at this hearing, I heard also from Nurse I, (a Nurse Consultant with the Contraceptive Service). The Official Solicitor had instructed Dr. Sam Rowlands, Clinical Lead in Community Sexual and Reproductive Health at Dorset Healthcare University NHS Foundation Trust, a specialist in sexual and reproductive health. Although he attended at court for the hearing, his report was not contentious and he was not called to give evidence. I have read his report with care.
The hearing has once again been conducted in public pursuant to rule 92(1)(a) of the Court of Protection Rules 2007. The need for a decision is pressingly urgent.
Summary of decision
For the reasons more fully set out below, I have concluded that:
i) It is in DD's best interests that I should authorise the Applicants:
a) to provide DD with education on contraception, and then
b) to assess her capacity to make decisions in relation to contraception;
ii) It is in DD's best interests that I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include, if necessary, forced entry into her home in order to convey her to a community health service resource, and if necessary use restraint.
iii) There is indeed reason to believe (per section 48 Mental Capacity Act 2005) that DD currently lacks the capacity to make decisions in relation to contraception;
iv) It is in DD's best interests to be administered a Depo-Provera contraceptive injection at the time of the caesarean section. I authorise the Applicants' staff to do so.
Recent events
Before discussing the evidence, and the reasons for my decision, it is appropriate that I should record the following events which have occurred in the days since my last judgment:
i) On 7 July, Mr D (social worker, and Approved Mental Health Professional) visited DD's and BC's home; there was no answer at the door, save that BC called out that he and DD were fine; both DD and BC shouted through the closed door to the social worker to " go away";
ii) On 8 July, DD and BC were seen briefly by Nurse I as they emerged from their home; Nurse I had been delivering leaflets about family planning and contraception. BC and DD retreated and slammed the door shut. BC was seen still to be holding the envelope containing the leaflets, and took it back inside with him.
iii) Later the same day DD and BC attended at the offices of the Applicants; they were returning a letter delivered to them. They were seen to be angry: BC's parting words were " she's not pregnant"
iv) Mr D visited again on 8 July; there was no response; he left a letter detailing the outcome of the last court hearing, and giving details of this. This letter was returned to the Applicants marked on the envelope " Please Go Away", and inside the letter, their names had been erased in pen, and the word " moved" was scrawled above this.
Judgment: [2014] EWCOP 11
I covered important evidential and legal ground in my earlier judgment; some of it is directly relevant to the issues which fall for consideration now. It would be repetitious to set it out again here. For the avoidance of doubt, I specifically take into account, in reaching my decisions at this hearing, my views on the evidence, and the distillation of the law, from the earlier judgment as follows:
i) Summary of the relevant background, and history of DD's current pregnancy and ante-natal care (§20–44);
ii) Expert opinion as to DD's mental state and functioning (§45–54);
iii) General principles as to capacity (§55–63);
iv) DD's capacity to decide on mode of delivery of baby (as this is linked, in my judgment, to her capacity to decide on contraception) (§69–79);
v) Capacity to decide on assessment to test capacity to make decision on contraception (§80–84);
vi) Conclusions on capacity (§85–89);
vii) Best interests: general comment on the law (§90);
viii) DD's wishes and feelings: the Aintree case (§121);
ix) Use of reasonable force and admission to hospital (§129–134);
x) Assessment to establish whether DD can decide on issues of contraception (§145–160).
Capacity
Interim declaration as to capacity to make decisions in relation to contraception
As I indicated at §80–84 [2014] EWCOP 11, there has been no specific current assessment of DD's capacity to make decisions in relation to contraception. Accordingly, I am asked to determine, for the purposes of making an interim order, whether the evidence supports a conclusion that there is reason to believe ( section 48 MCA 2005) that DD currently lacks capacity to make decisions in relation to contraception.
It is important to set this question in context. DD's medical notes (more fully available since the last hearing, and discussed by both Dr. F and Dr. Rowlands) reveal that during her childhood and adult life she has periodically received advice about contraception, and has been prescribed, and has used, different forms of contraception. The evidence appears to show that the contraceptive pill was first prescribed for DD when she was 12 years old. Her first Depo-Provera injection was in March 2000 but she was...
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