England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/02/2013

The Hon. Mr. Justice Cobb :

1. This judgment follows a hearing in open court and is a public document. At a previous hearing, a reporting restriction order was made as being necessary to protect the privacy of the subject of these proceedings, 'K', and of those who surround and care for her. In summary, the Applicant is to be referred to as 'A Local Authority', the First Respondent as 'K', the Second and Third Respondents, her parents, as 'Mr and Mrs K', and the NHS Trust which is concerned with treatment issues (Fourth Respondent), 'A NHS Trust'.
2. K is, by every account, a delightful, warm, engaging and affectionate young woman. She was born with Down's Syndrome and has an associated mild/moderate learning disability. She is 21 years old. She is a day student at a specialist college for people with learning disabilities.
3. K is cared for by her parents, together with her older brother; theirs is a loving, close, devoted and supportive family. There is a large extended family both here and abroad; K has, from time to time, travelled abroad to visit her relatives. In every respect in which I have read about the care which K receives at home, there is nothing but praise for Mr and Mrs K, and their devotion to K.
4. K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K's social welfare) for a best interests' determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family).

Background:

5. K was born in August 1991; she has lived all her life in the care of her family. Over recent years, Mr and Mrs K have become increasingly concerned that as K becomes older their ability to control and supervise aspects of her life will be reduced (in some respects appropriately so), and consequently the risks of her engaging in both wanted and unwanted sexual activity increase. Were K to become pregnant at any time in the future they believe this would have a seriously adverse effect upon her. They have particular concerns about her college attendance when they have less ability to supervise K.
6. In 2010 they sought medical advice about contraception from their general practitioner; under local anaesthetic, a hormonal implant (Implanon) was inserted into K's arm. The procedure was difficult and traumatic for K (and her mother); the effect of the hormonal implant was to change K's temperament significantly over the following months; she became difficult to manage. Accordingly, in a further (difficult) procedure some few months later, the implant was removed.
7. In October 2011, at her parents' request, K was referred by her GP to a gynaecologist at the NHS Trust to consider sterilisation. They saw Dr. X, Consultant Obstetrician and Gynaecologist; Mr and Mrs K expressed the clear view that K should be sterilised. Dr. X initially supported Mrs K's request for sterilisation for K. He reported as follows: "[Mrs K] was adamant that she wanted [K] to have laparoscopic sterilisation. In view of this I agreed to the procedure…"
8. Dr. X's recommendation for sterilisation of K was brought to the attention of a Matron for Safeguarding Vulnerable adults, who advised that due to the nature of the treatment, there was a need for a best interests meeting and a second opinion.
9. A second opinion was sought from Dr. Y, another Consultant Obstetrician and Gynaecologist within the Trust. She expressed the view that if contraception were to be provided, the least restrictive contraceptive option for K would be a mirena coil.
10. The issue of K's possible sterilisation was considered at 'best interests' meetings which were convened first on 28 November 2011 and secondly on 13 June 2012. These meetings involved staff from the Trust together with K's parents; the second meeting also included representatives of the Local Authority. The conclusion of the second meeting was that a non-therapeutic sterilisation was not in K's best interests; it was proposed that given the difference of view between Dr. X and Dr. Y a further (third) gynaecological opinion would be sought from Dr Z. At that time, it appears not to have been the intention of the Local Authority to direct the issue of sterilisation to the Court, or to sanction any specific treatment.
11. Following the 13 June 2012 meeting, Mrs K wrote to Dr. X (17 June 2012) as follows: "we feel that to do nothing [in relation to the sterilisation or contraception] is a very unsatisfactory outcome … it is our intention in the future and before [K] leaves our care to take her abroad to seek assistance with this matter both privately and confidentially".
12. Given the threat of removal of K from the jurisdiction for the purpose of sterilisation, and the imminence of the long summer holiday when K would not be seen at school, the Local Authority issued proceedings (11 July 2012). The matter came before Moor J. (13 July 2012). The parents attended the hearing in person, and freely gave undertakings not to remove K from the jurisdiction. K was joined to the proceedings, as was the NHS Trust.
13. During the currency of proceedings, Dr. Z provided his opinion (2 October 2012); he concluded that K did not need contraception at the moment but that K's contraceptive needs should be reviewed regularly if she was aiming to move to independent living. Importantly, he observed that IUD / IUS implants were currently recommended as the first line contraceptive in adolescent girls; he opined that only if K is sexually active and an IUS has been shown to be unsuccessful should (hysteroscopic) sterilisation be considered.
14. Within those proceedings, A Local Authority and the Official Solicitor jointly commissioned a report from Dr. Samuel Rowlands, Clinical Lead in Community Sexual and Reproductive Health at Dorset Healthcare University NHS Foundation Trust, and Honorary Associate Professor at Warwick Medical School. His report (12 January 2013) is clear and informative, revealing an appropriate depth of knowledge of this subject; he appends to the report a table setting out the comparative methods of contraception (in order of increasing restrictiveness) and their effectiveness. He discusses sensitively and in plain language the contraception options for K. He then opines, significantly, as follows:

(a) there is no clinical need to treat K's menstrual symptoms, she does not have a pre-menstrual syndrome;

(b) it is not in K's best interests to receive contraception at this time; there are no benefits, because:

i) K does not have any period problems which might benefit from contraception;

ii) she is not running the risk of pregnancy;

iii) if the current level of supervision in the community is maintained and it is accepted K does not show signs of initiating a sexual relationship, contraception would not be in her best interests;

iv) it is not justifiable to expose K to the disadvantages of the various contraceptive interventions.

(c) should K develop an intimate relationship with a male partner and it was in her best interests to continue this, then she should receive contraception;

(d) if a contraceptive intervention were to be used then a intrauterine device would be in her best interests;

and finally and crucially:

(e) sterilisation is not in K's best interests and is not the least restrictive option.

15. Mr and Mrs K – acting in person in this case – also reviewed Dr. Rowland's report favourably; they observed (in an e-mail to the parties: 5.2.13) that it was "very well written and very informative. It detailed and fully explained the issues that gave us cause for concern …". In a forensic world in which self-representing litigants increasingly populate our courts, it is vitally important that an expert writes his or her report in a manner which is accessible and intelligible to all; Mr and Mrs K's compliment is well-made.
16. The opinion expressed by Dr. Rowlands is explicitly endorsed by Dr. Y and Dr. Z. Dr. X has also reviewed it and has concurred that doing nothing at present is the least restrictive option; he has not sought to argue that his initial recommendation of sterilisation should be preferred over Dr. Rowland's opinion.
17. In the weeks leading up to the hearing, K has suffered some minor gynaecological problems, which have understandably caused her parents some additional concern. It appears that at least in part for this reason, the parents are no longer supporting sterilisation at this stage (see below).

The position of the parties:

18. At the outset of the hearing, it became clear that there was a large measure of agreement between all of the parties. I give this short judgment:

(a) To deal with the (narrow but important) issue which separates the parties;

(b) At the invitation of counsel for A Local Authority, the Official Solicitor, and the NHS Trust, to highlight the procedure and practice issues which arise in a case where medical professionals are confronted with an issue such as proposed non-therapeutic sterilisation for a person lacking capacity.

19. The parties agree that it is not in K's best interests to receive any form of contraception at present as she is not currently sexually active and does not currently show interest in sexual relations. Further it is apparent that she is well supervised at home and in the community. It is the joint expectation of the parties (and this will be recorded on the face of the final Order in these proceedings) that the issues to which the proceedings give rise will not in fact need to be the subject of further best interests decisions, unless there are significantly changed circumstances relating to (a) K's level of interest in intimate or sexual relations with others and/or (b) the assessment of risk that K will be the subject of sexual exploitation.
20. The issue which divides the parties is whether I should declare in these proceedings at this stage that it is not in K's best interests to be the subject of a sterilisation procedure (on the basis that such a procedure would not be the least restrictive option), so that there is clarity should a 'best interests' determination have to be made 'on the ground'.
21. The Applicant Local Authority (supported by the Official Solicitor and the NHS Trust) rely on the report from Dr. Samuel Rowlands; as indicated above he does not support sterilisation for K, as this is not the least restrictive option; Mr and Mrs K do not agree, and argue that in reality it is.
22. By e-mail circulated on 5 February 2013 (i.e. shortly before the hearing), Mr and Mrs K indicated that they agreed "with all other parties that [K] should not be sterilised and that any other form of contraception should not be considered at this time". In the hearing before me they emphasised the words "at this time". They do not agree that sterilisation is not the least restrictive option for her; they believe that while it is not appropriate at present, they would not want to rule it out as an option for the future. They add (per e-mail, ibid.) "[w]e realise that this leaves the case open-ended as at some time in the future these issues may have to be re-visited if the need should arise".

Capacity:

23. The first issue for me to consider is K's capacity. In assisting me to make a determination under section 2 and section 3 of the MCA 2005, I have seen a report from Dr. D. Having reviewed the material, and met with K, he concluded that K has a significant mental impairment, with a full scale IQ of less than 70 and Down's Syndrome. Specifically, he comments, K lacks capacity to deal with the specific issues of contraception and sterilisation which are before the court. Rightly, no party raises an issue in these proceedings about capacity.
24. In evaluating capacity in circumstances concerning sterilisation and contraceptive treatment, I remind myself of the test formulated by Bodey J in A Local Authority v A [2010] EWHC 1549 (COP); [2010] COPLR Con Vol 138 at para.64. The test for capacity to be applied to ascertain a woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment includes consideration of:

(a) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);

(b) the types available and how each is used;

(c) the advantages and disadvantages of each type;

(d) the possible side-effects of each and how they can be dealt with;

(e) how easily each type can be changed; and

(f) the generally accepted effectiveness of each.

25. There is no doubt, having regard to the report of Dr. D, that K would not have capacity to understand and weigh up the immediate medical issues identified above. I find that she lacks capacity in this regard and that I should therefore consider making a decision in her best interests.

Best interests:

26. Any decision made or endorsed by the Court in a case such as this must, by statute, be taken in the best interests of K (section 1(5) MCA 2005), with regard to the fact that the decision should be the "least restrictive" of K's rights and freedom of action (section 1(6)). In reaching a conclusion on her best interests, I have had regard to the provisions of section 4 MCA 2005, and to "all the relevant circumstances" (section 4(2)). Those circumstances include all "medical, emotional and all other welfare issues" concerning K (borrowing the language of the pre-MCA 2005 Court of Appeal decisions of Re MB (Medical Treatment) [1997] 2 FLR 426 at 429, and R-B v Official Solicitor: Re A (Medical Sterilisation) (1999) 53 BMLR 66). In this respect, I have of course had regard to the method of achieving the sterilisation (involving the necessary hospitalisation of K), the likely permanence of the procedure, and the interference with K's physical integrity.
27. In reaching a decision I have also paid significant attention to the views of K's parents (section 4(7)). They appeared in person in court before me; bravely and emotionally, Mrs K spoke for the couple in advancing to me why they believe that sterilisation is (or may well be) the right procedure for K. In particular, I have noted, and understand, Mrs K's plea that in the event that K has to undergo general anaesthetic for any contraceptive procedure (which would be indicated for the insertion of an IUCD), then it would be fairer to K for her to be sterilised so that the issue of future contraception is resolved 'once and for all'. I have no doubt that Mr and Mrs K are deeply concerned to do what is best for K, and that the views expressed by them sincerely reflect what they believe to be best for K.
28. In reaching my conclusions, I have also had regard to the statements of the social worker; these reflect an intuitive understanding of the issues, and proper acknowledgement of the important role of the parents in K's life.

Conclusions:

29. It is in K's best interests that I should bring as much clarity to medical treatment issues now as I can. I endorse the view expressed by Dr. Z that "the processes for repeated assessments and best interests meetings will be time consuming and stressful". I recognise that these issues may need to be re-visited in the future but in my judgment it is right that I should endeavour to bring as much clarity now as I can.
30. No-one can doubt the seriousness and significance of a sterilisation procedure. Further surgery would be required to reverse it (involving a laporotomy) and then only with a moderate prospect of success.
31. I have weighed up the competing benefits and disadvantages of the sterilisation procedure now and in the future. The parties concur that no step needs to be taken right now. Although Mr and Mrs K expressed concerns that K is occasionally 'tactile' and 'over-familiar', that she has begun to be more aware of the 'opposite sex', and is vulnerable to sexual exploitation, I note that K is well-supervised at home and at college; there is no evidence that she is seeking a sexual relationship. I note that she is working with the Community Nurse Learning Disability to help her to reduce her vulnerability around others.
32. While sterilisation is particularly effective at preventing pregnancy (5 in 1000 lifetime pregnancy risk if Filshie clips are used), I bear in mind that there are potential complications of the procedure too (in 2 out of 1000 cases there is a major complication such as damage to the bowel or bladder).
33. I have sought to achieve the right balance between protection and empowerment as advised by Dr. Rowlands. Having regard in particular to his carefully expressed opinion, it is my judgment that sterilisation would be a disproportionate (and not the least restrictive) step to achieve contraception for K in the future (absent significant change in her circumstances). Plainly risk management is better than invasive treatment, it is less restrictive. Moreover, I am persuaded by Dr. Rowlands that there are less restrictive methods of achieving the purpose of contraception than sterilisation, and that in the event of a need for contraception, these ought to be attempted.
34. It is in K's interests that I should make this declaration now; I do not believe that it is in K's interests that this issue should be left unresolved; plainly it may need to be litigated at some point in the future but only if there has been a significant change in circumstances.

Practice / Procedure:

35. On the reading of the material before me it appears that Dr. X may not have been aware of the need to refer the question of non-therapeutic sterilisation to the Court of Protection; indeed the Local Authority's actions in bringing the proceedings appear to have been prompted more by the perceived need for injunctive relief than necessarily for the declaration itself.
36. Referral to the Court of Protection in a case such as this could and should always be considered at the earliest moment in accordance with the Rules (see in particular Practice Direction 9E to the Court of Protection Rules 2007, and Para.6.18 and Paras.8.18-8.29 of the Mental Capacity Act 2005 Code of Practice). I take this opportunity to remind medical (and, where relevant, legal) practitioners of the Court of Protection's role in considering a question of non-therapeutic sterilisation. Such a treatment decision is so serious that the Court has to make it. In particular I advise that particular note is made of the process as follows:

(a) The decision of whether someone who lacks capacity to consent should have a non-therapeutic sterilisation is a question involving "serious medical treatment" (see Practice Direction E (PD9E) – Applications relating to serious medical treatment). Non-therapeutic sterilisation is specifically identified in this category (see Paragraph 5(c));

(b) A question concerning non-therapeutic sterilisation of a person who lacks capacity to give consent "should be brought to the court" (Para.5 ibid.);

(c) Where a question arises as to non-therapeutic sterilisation of a person who lacks capacity to consent, the proposed applicant (whether it be carer, local authority or trust), can (indeed I suggest should) usefully discuss the application with the Official Solicitor's department before the application is made (see PD9E para.8): such cases should be addressed to a family and medical litigation lawyer at the Office of the Official Solicitor,

(d) The organisation which is, or will be, responsible for providing clinical or caring services to P should usually be named as a respondent in the application form (where it is not already the applicant in the proceedings);

(e) Proceedings of this kind must be conducted by a judge of the Court of Protection who has been nominated as such by virtue of section 46(2)(a) to (c) of the Act (i.e. the President of the Family Division, the Chancellor or a puisne judge of the High Court) (Para.12 PD9E);

(f) At the first hearing of the application the Court will consider

i) whether P should be joined as party to the proceedings, and give directions to that effect;

ii) if P is to be joined as a party to the proceedings, decide whether the Official Solicitor should be invited to act as a litigation friend or whether some other person should be appointed as a litigation friend;

iii) identify anyone else who has been notified of the proceedings and who has filed an acknowledgment and applied to be joined as a party to proceedings, and consider that application; and

iv) set a timetable for the proceedings including, where possible, a date for the final hearing.

(g) Note that the hearing will generally be in public, given the nature of the application, although the Court will ordinarily make an order pursuant to Rule 92 that restrictions be imposed in relation to publication of information about the proceedings.

37. Where a declaration is needed, the order sought should be in the following or similar terms:

(a) That P lacks capacity to make a decision in relation to the [proposed medical treatment or procedure]. e.g. "That P lacks capacity to make a decision in relation to sterilisation by [named procedure]"; and

(b) That, having regard to the best interests of P, it is lawful for the [proposed medical treatment or procedure] to be carried out by [proposed healthcare provider];

or

(c) That it is not in the best interests of P to undergo [the proposed medical treatment or procedure].

38. The order which I will make in this case will carry on its face a specific recital that any issue of non-therapeutic sterilisation should be brought back before the court so that those who were responsible for K's care in the past are clear about the requirements going forward.