By Charles Foster
For the first time a court has sanctioned the sterilisation of an incapacitous male patient: see An NHS Trust v DE and others:  EWHC 2562 (Fam): Mrs Justice Eleanor King in the Court of Protection: judgment handed down on 16 August 2013.
This possibility of such an order was clear from Re A (Male Sterilisation)  1 FLR 549, but there was a piece of the evidential jigsaw missing: evidence that, after and because of the proposed vasectomy, the degree of supervision of the patient would be reduced, that he would have an opportunity to develop a satisfactory sexual relationship, and that these changes would be in the patient’s overall best interests. That piece was present in the case of DE.
DE is nearly 37-years-old. He has profound learning difficulties. He has an IQ of around 40, and a mental age of between six and nine.
For ten years (with a short break) he has had a girlfriend, PQ, who also suffers from learning disabilities. That relationship was and is very important to him. In June 2010 PQ gave birth to his child. PQ was unable to care for the child. The Local Authority issued care proceedings, and a Special Guardianship Order was made in favour of the child’s maternal grandmother, at whose home the child and PQ both live.
The pregnancy caused the involvement of a number of agencies. It was determined that DE did not have capacity to consent to sexual intercourse. PQ was warned that further acts of sexual intercourse might be criminal, and a regime of supervision of the pair was put into place. This all put predictable stress on their relationship, and they split up for a while. DE had been making significant strides towards increased independence. This split set him back.
Vasectomy was mooted. DE’s clinicians, parents and carers concluded that it would be in his best interests. It was agreed that he could not consent to it himself – an issue to which I return. Accordingly an application was made to court. By the time the case came before the court DE’s capacity to consent to sexual intercourse had been reassessed: it was now concluded that he had capacity.
Like many cases involving compulsory medical treatment, this case was more newsworthy than legally interesting. The legal principles are well established. Assuming incapacity, the only question the court has to answer is whether the proposed treatment is in the patient’s best interests. The court has to work through the criteria in s 4 of the Mental Capacity Act 2005. Here, the court concluded that the relationship with PQ should be supported. One important way of doing that was by facilitating a sexual relationship. DE was unequivocal and consistent: he did not want to have any more children. If another child was born, DE would be deeply distressed, and the removal of the child from PQ would be very likely to result in the breakdown of DE’s and PQ’s relationship. Other methods of contraception would be very unreliable. In the absence of a reliable form of contraception, an intrusive degree of supervision of DE and PQ would be necessary. DE’s parents would be very distressed by a further pregnancy. The court was not, of course, concerned directly with their interests, but took the effect on them into account, since their levels of tension and distress would inevitably affect their ability to care for DE.
The Official Solicitor asserted that there was a distinction between parenting a child (which it was accepted DE could not do and did not want to do) and fathering a child. A time might come, it was argued, when he may want to conceive a child. Vasectomy deprived him of this right.
The court did not find this distinction helpful. DE was wholly unable to make that distinction himself, and would be most unlikely to change his mind about the desirability of conceiving a child in the future. This was purely a decision on the fact: the distinction may well be significant in some cases.
There is one legally interesting point in the case. It was submitted by the Official Solicitor that insofar as it was appropriate to have a starting point for undertaking the best interests determination, the starting point should be the rights enunciated in Art 8 of the ECHR, and Art 23 of the United Nations Convention on the Rights of Persons with Disabilities (which is concerned to eliminate discrimination against persons with disabilities). This was wrong, said the court, adopting the approach of the Court of Appeal in K v LBX  EWCA Civ 79. “I approach the decision to be made in this case as identified by Davies LJ [in K v LBX at para 62], namely that proper consideration can be given to any Art 8 (or Art 23 and 26) points which arise in the context of the s 4 Best Interests appraisal”. The starting point is thus the Act itself. Section 4 prescribes the process.
That will raise no legal eyebrows. Nor will the decision itself. It is a wholly conventional application of s 4.
It is worth looking back, though, at the uncontested assumptions (a) that DE could consent to sexual intercourse but (b) could not consent to vasectomy.
Section 2(1) of the 2005 Act provides that:
“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
Section 3 provides that:
“(1) For the purposes of s 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.”
Viewed through these statutory lenses, it is rather surprising that the patient had capacity to consent to sexual intercourse, with the understanding of its ramifications that that entails, but no capacity to consent to vasectomy. One might think that more understanding is necessary for the former than the latter. Sexual intercourse itself is a widely repercussive act. Vasectomy simply involves permanent sterility and a fairly minimal risk (quantified at 0.5%) of scrotal pain. DE’s assertion that he never wanted to have other children was one of the central planks of the judge’s decision. She took that assertion as a genuine expression of will. One doesn’t have to go much further than that to find, within the s 2 and s 3 criteria, that the patient was capacitous. And there are plenty of indications that DE was cognitively capable of going just that little bit further.
One cannot really criticise the parties for wanting the decision about vasectomy to be endorsed by the court, but it is hard to see, on the facts that were found, that it was really necessary.