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Court of Protection sanctions sterilisation of man with learning disabilities

First permitted authorisation of sterilisation for non-therapeutic purposes

The Court of Protection has granted a declaration that it is in the best interests of a 37 year-old man to undergo a vasectomy.

In NHS Trust v DE [2013] EWHC 2562, Eleanor King J heard an application by an NHS Trust for a raft of declarations relating to DE.

DE was aged 37, had an IQ of 40 and a mental age of 6 to 9 years. He had, with the assistance of dedicated parents, achieved a level of independence which would not have been expected of someone with his profound difficulties. He had also entered into a long-standing and loving relationship with a woman, PQ, who herself had a learning disability. Such a long standing relationship was, in the view of the consultant psychiatrist instructed, rare for a person with DE's IQ and extremely important to him. However, he had been assessed as lacking the capacity either to consent to sexual intercourse or to use contraception.

In 2009 PQ became pregnant by DE and subsequently gave birth to a child, XY. Eventually a special guardianship order was made in favour of XY's maternal grandparents (with whom PQ herself still lived).

The emergence of the fact that PQ and DE's relationship had become a sexual one (in circumstances where DE was assessed as lacking capacity to consent to sexual relations) led to a number of protective measures being put in place for DE and in due course PQ separated from DE.

The NHS Trust applied for declarations that:

a) DE did not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure;
b) That it was lawful and in DE's best interests that he should undergo a vasectomy;
c) That it was lawful for the NHS Trust to take any steps which were medically advised by the treating clinicians at the trust responsible for DE's care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.

The court was informed that this would be the first time that a court in this jurisdiction had made orders permitting the sterilisation for non-therapeutic reasons of a male unable to consent to such a procedure.

DE's clear wish was not to have any more children. DE's parents formed the view that he should have a vasectomy, a view which came to be supported by the local authority.

By March 2013 DE and PQ had resumed their relationship and in July 2013 DE was assessed by the consultant psychiatrist as having capacity to consent to sexual relations. DE's wishes and feelings were in favour of remaining living with his parents and not having any more babies. He had expressed different views on different occasions about a vasectomy.
Eleanor King J summarised the applicable principles in ss1(5) and 4 of the Mental Capacity Act 2005 and the case law on how they are to be applied. She also conducted a review of the applicable European case law on Article 8 ECHR, as well as Article 23 of the United Nations Convention on the rights of Persons with Disabilities (UNCRPD).  She held that there was no one particular aspect of Article 8 which held precedence over any other. She also held, in line with the dicta of Davies LJ in K v LBX [2012] EWCA Civ 79 that proper consideration can be given to any Article 8 points which arise in the context of the section 4 Best Interests appraisal. Applying the principles suggested by Munby J (as he then was) in ITW v Z [2009] EWHC 2525 (Fam) on the treatment of wishes and feelings of incapacitated adults, Eleanor King J stated that these views had to be treated with caution in light of his inability to understand and weigh up the factors for and against it.

Eleanor King J held that the evidence unequivocally pointed to an improvement in the quality of DE's life in the event that he had a vasectomy. Weighing up all of the factors in the case, and commenting that each case would be fact-specific, she found it to be overwhelmingly in DE's best interests to undergo a vasectomy. The Court therefore made the declarations sought by the NHS Trust.

Jane Tracey- Forster of Hailsham Chambers (instructed by Browne Jacobson) for the NHS Trust. Angus Moon QC of Serjeants' Inn Chambers (instructed by the Official Solicitor) appeared for DE. DE's parents were not represented and appeared in person. John McKendrick of Outer Temple Chambers (instructed by Weightmans) appeared for the local authority. Victoria Butler-Cole of Thirty Nine Essex Street (instructed by Bevan Brittan) appeared for the Partnership Trust.

This news item is an abridged version of the case summary prepared by Thomas Dudley of 1 Garden Court. For the more detailed summary and the judgment itself, please click here.