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The Mental Health Trust & Ors v DD & Another [2015] EWCOP 4

Application by mental health trust, acute trust and council to perform a therapeutic sterilisation on a patient lacking capacity without informing her of the date of the intervention, and to enter her home forcibly if necessary to take her to the hospital. Permission granted.

The court permitted the applicant mental health trust, acute trust and council to perform a therapeutic sterilisation on a patient lacking capacity without informing her of the date of the intervention, and to enter her home forcibly if necessary to take her to the hospital.

The patient, DD, was a 36 old woman who had recently completed her sixth pregnancy, and was represented through the Official Solicitor. She had a diagnosis of Autistic Spectrum Disorder, mild to borderline learning disabilities with an IQ of 70 and she also displayed characteristics consistent with an attachment disorder. DD had been the subject of five Court of Protection decisions in the nine months prior to the judgment.

She had no ongoing contact with any of her children, all of whom had been removed to permanent alternative care. She was however in an ongoing relationship with BC, which included a sexual relationship. She had a history of strong objection to the involvement of healthcare professionals in her life, and significantly had concealed or attempted to conceal three of her previous pregnancies.

The expert evidence presented a consensus that DD's diagnoses meant that she had a very rigid thinking structure. This meant she could not understand significant decisions involving multiple factors, nor could she weigh those factors in making a choice.

The consequence of multiple pregnancies in a short period of time, and four of DD's six children being born by Caesarean section, was that any future pregnancies placed a high risk both on the infant and on DD.

By the time of the hearing the applicants and the Official Solicitor agreed that DD lacked capacity to make a decision in relation to therapeutic sterilisation or long-term contraception, and that it was in her best interests to be sterilised. The judge made clear that the ultimate decision remained his however [13].

Although the court had previously determined in other hearings that DD lacked capacity, The judge made clear that the court had to determine capacity on the evidence available at the time of the decision and in respect of the current decision in question, capacity being a decision specific determination [52]. The judge found that, as a result of the rigid thinking style caused by her Autistic Spectrum Disorder, DD was unable to use and way information to make decisions about litigation. Further, she was unable to understand the decisions to be made about contraception and was further unable to weigh the factors involved in a contraception or sterilisation decision. She therefore lacked the capacity to litigate or to make decisions in relation to contraception or sterilisation.

Best interests in relation to contraception and sterilisation
The judge reviewed the authorities on medical intervention and sterilisation at paragraphs [81]-[86]. He noted the extreme nature of a decision to sterilise an individual without capacity, and stressed that such a decision did not involve any element of eugenics, but instead a consideration of the life-threatening risk of pregnancy for DD [8]. A patient lacking capacity enjoys the same human rights as everyone else [5].

It was determined that DD was likely to fall pregnant again and that doing so placed her at risk of uterine rupture, placenta accrete, placenta prevaria or a repeat of the intra-cerebral embolism she had suffered during her fourth pregnancy [89]-[94]. This was a result of the damage to her reproductive system from having four pregnancies in the previous five years, and four deliveries by caesarean section. In addition to this, DD had a history of concealing or attempting to conceal pregnancies, had declared an intention in relation to all her recent pregnancies to deliver her babies at home despite grossly unhygienic circumstances, and in combination with her partner was fiercely resistant to medical and professional support and therefore unlikely to summon assistance in the event of an emergency during birth [10]. It was therefore found that if DD did attempt a home delivery the risk of a fatal outcome for her was at least 30% or 50%. As a result, The judge determined it was "dangerously an unacceptably high" [94], and preventing a future pregnancy was in DD's best interests.

The judge adopted the 'balance sheet' approach to determining whether sterilisation or long-term contraception represented the least restrictive option for DD, but with varying weights placed on separate factors [112]. There were two factors of magnetic importance in finally deciding that sterilisation was in DD's best interest: that a future pregnancy posed such a risk to DD's life that any additional reduction in the chance of pregnancy should be preferred; and that DD's desire to be left without intrusion by healthcare professionals meant that the permanent solution of sterilisation was the least invasive in this exceptional case [113]. Future fertility was specifically not a magnetic factor in DD's case, because there was no realistic prospect of DD parenting a child [114]. The sterilisation was therefore authorised with the predominant purpose of preserving DD's life [131].

Giving effect to the order
Due to DD's resistance to medical intervention, the judge held that it was necessary to give the relevant healthcare professionals the power to enter DD's home forcibly and remove her to the hospital for the sterilisation treatment. This was despite the clear evidence that each successive entry to her home created escalating levels of distress for DD [136]. The judge stressed that DD should be asked to attend voluntarily first [132] and that the entry must be in accordance with the care plan agreed with the Official Solicitor [140 iv] and with the presence of a Positive Behaviour Specialist who had previously had success in engaging DD [137 i]. The judge further ordered that DD was not be informed of the proposed date for the intervention, on the basis that the knowledge of the planned date for the intervention would distress DD and BC, and create a risk that she would put her life at risk by disappearing ahead of the treatment [138]-[139].

Supplemental issues
Source of duty
The judge reviewed the source of the duty that each of the three applicant public bodies owed to DD in the situation where she was not seeking care. He concluded that there was a duty on the local authority to safeguard DD and protect her from harm, and probably also on the Mental Health Trust as they were aware DD apparently lacked capacity to make decisions in relation to contraception and sterilisation [22]. The source of these duties was said to be less clear though, and was found to arise from a combination of 'community care' statutes, common law, the Human Rights Act 1998 and the Mental Capacity Act 2005 [24]. There was no operational duty placed upon the applicants by Article 2 ECHR, however, as the risk to DD's life was not so immediate as to create an obligation above those already found in statute and common law [32].

Sterilisation and Article 12 ECHR
Both counsel submitted that Article 12 does not create a separate right to found a family without the presence of marriage. The judge agreed, and stated that the wording of Article 12 strongly suggests that only one single right is created, and not separate rights to marry and to form a family. Therefore, Article 12 was not engaged in DD's case [100]. Obiter, the judge commented that Article 12 would offer little more protection than Article 8, and that in circumstances such as DDs sterilisation would still be Article 2 compliant, as the interference would be neither arbitrary nor disproportionate [101].

Summary by Samuel Littlejohns, pupil barrister, 1 Hare Court

To read the the judgment in this case, published on BAILII, please click here.