B e f o r e :
| THE HOSPITAL TRUST
|- and -
|MISS V (By her Litigation Friend, the Official Solicitor)
THE LOCAL AUTHORITY
Debra Powell QC (instructed by Official Solicitor) for Miss V
Ella Anderson (instructed by the Local Authority solicitor) for the Local Authority
Francesca P. Gardner (instructed by Stephensons Solicitors LLP) for Mrs W
Hearing dates: 17 and 18 October 2017
Crown Copyright ©
The Honourable Mr Justice Cobb:
i) Whether Miss V has the capacity to consent to sexual relations:
ii) Whether she has the capacity to agree to the administration of non-therapeutic contraception;
iii) Whether it is in Miss V's best interests that she receives non-therapeutic contraception.
i) The Applicant, The Hospital Trust ("the Health Authority"), supported by the community learning disabilities team of the relevant Local Authority ("the Local Authority") contend that it is in Miss V's best interests that she should be provided with contraception as part of a wider safeguarding package, and specifically that a contraceptive patch should be trialled for a period of 3-6 months;
ii) Mrs W and the Official Solicitor acting on Miss V's behalf contend that contraception is not indicated or indeed necessary, and that the safeguarding package (without contraception) is sufficient to protect her.
I heard evidence from the Local Authority social worker from its learning disabilities team, the community matron from the learning disabilities team within the Health Authority, and from Mrs W. I received able oral and written submissions on behalf of each of the parties.
"[Miss V] became pregnant last year, and she has no understanding as to who by, or how, and she found it difficult to have medical interventions, and going through the later stages of the pregnancy she wanted the baby out. I observed her shouting pointing at her stomach; she did not understand what happened to her body; it was extremely difficult for professionals to get bloods and blood pressure from her. Any medical intervention she found traumatising and she was scared; a lot of intensive support was offered by the health professionals to help to prepare her for the birth of the baby. Though physically she healed well after the baby, the removal of the baby had a devastating effect on her emotional and psychological welfare; she could not understand where the baby was and was constantly asking for her baby; she was physically lashing out at her mother; she was self-harming; not sleeping; not eating; throwing herself on the floor; the community care officer took her to the GP and she got anti-depressants; it has a long effect on her.
After the contacts, she would be extremely distressed. The parents could not calm or reassure her; she physically became very ill complaining of pains in her body and feverish. She lost interest in the outside world, and became clingy to her mother. No matter who visited her, she only cried and asked for her baby. After several months, there were times when she smiled with her mother, and engage with outside activities but only with her mother. She became very fearful of the world".
"I have been working with adults [with learning disabilities] for 2˝ years, I have not seen such a distressing scene as this. I have been a children's social worker for 18 years, and I have seen many, many, parents lose their children or have them placed in care. Some of them [the parents] have learning difficulties; I have never seen this extreme level of distress before".
i) On 4 October 2016, Miss V was left alone upstairs in the house with a 17-year old brother; neither Mr W nor Mrs W were in the home; Mr W was unaware that Miss V had been left by her mother; the parents agreed that this was not acceptable and would not happen again;
ii) On 14 October 2016, Miss V was left by the parents in the company of male siblings who had not all been assessed as protective carers; the parents mistakenly thought that Miss V's older brother could supervise Miss V as he had not been present at the time of the conception of the baby;
iii) On 10 January 2017, Miss V had been left in the company of a brother who had not been assessed (Mrs W had been admitted to hospital two days earlier, with an infection); it was felt that this was a relatively minor transgression;
iv) On 27 April 2017, the family moved house, without advising social care, or having any discussion with social care about the proposed move;
v) On 7 August 2017, the social worker visited; Mr W told her that Miss V was asleep upstairs. She was not. Unbeknown to Mr W, Miss V had left the home and was at the house of a friend of her parents' down the road; when Miss V was seen there, she was in the company of a 14-year old male (the son of her parents' friend), otherwise unsupervised;
vi) On 10 October 2017, Miss V was seen walking down the street on her own with a plate of food; she was escorted back into the house, where her parents were. An interpreter (who was visiting to assist with a social work visit) reported (and this is not challenged) that she had arrived 15 minutes earlier, and had seen Miss V "come out of the house and walk at (sic.) the bottom of the street, look around and then walk back into the house. Approximately five minutes later, Miss V had come out of the house again with a plate of food…." Mrs W plainly did not know where Miss V had gone.
"[The parents] informed me that they constantly remind Miss V she was not able to leave the house without them and that she was not allowed to go to the aunt's house, who lives at the bottom of the street, without them. [Mr W] stated that they normally lock the front door and take the key out of the door to prevent [Miss V] from leaving the house, as [Miss V] will try to leave when other family members go out or when her cat is outside, she wants to go and find her cat. [Miss V's mother] stated that is what she was probably doing today… When she does not find her cat, she will go out with a plate of food looking for the cat. … [Mrs W] stated she had gone upstairs to the bathroom and [Miss V] was in the kitchen, when she returned she came into the living room and thought [Miss V] was still in the kitchen with [Mr W]. [Mrs W] stated that she had not realised that [Miss V] had left house. [Mr W] stated that he was chatting to their guest in the kitchen and it was busy today with everyone inside the house and they have also had their son and his girlfriend visiting them. He assumed that when [Miss V] left the kitchen had gone upstairs to [Mrs W] and did not think to check. [Miss V] was unable to tell me consistently what she was doing outside on the road on her own." (emphasis added).
Interim Safeguarding Plan and Contraception
"Mum and Dad continue to work with adult services and ensure that they do not leave [Miss V] in the care of any unknown or approved (sic.) persons, including her brothers until investigation is completed and agreed by social care". (The obvious typographical error in this key provision has been exposed by the scrutiny of these proceedings).
There are further provisions for regular professional monitoring of the home situation, and of Miss V's well-being, to maintain focus on the parents' need for support. The community matron will "undertake ongoing work focusing upon relationships, personal safety within relationships and the right to say no, and sexual health." In the event that the court were to approve the administration of a contraceptive patch, there is provision for close monitoring of the patch, and of Miss V, and enabling the skills of the family in managing the same.
i) The principal benefits of the patch are that it is reasonably easy to apply; the failure rate is about 9%; hormonal contraception has a generally beneficial effect on menstrual bleeding, and on the skin; the presence of a patch is also verifiable; it is swiftly reversible;
ii) The disadvantages of the patch are (a) possibly allergic skin reaction around site, (b) the risk that Miss V may choose to remove the patch, or it may become detached, (c) that Miss V would need support at the point at which it is removed, and re-applied, (d) user error (the time at which the patch is applied, and/or replaced, needs to be reasonably diligently observed). There is also some evidence (though it is described in the report at one point as no more than a "suggestion") that some patch wearers suffer side-effects such as nausea and breast discomfort or tenderness, and period-type cramps.
i) Miss V is presumed to have capacity unless the contrary is shown (section 1(2) Mental Capacity Act 2005 ['MCA 2005]);
ii) I would not treat Miss V as unable to make the decision unless all practicable steps have been taken to help her to do so, without success (section 1(3) MCA 2005);
iii) Lack of capacity is established if a person is unable to make a decision for herself, in relation to the matter, because of an impairment or disturbance of the mind or brain (section 2(1) MCA 2005) (the diagnostic test);
iv) Miss V will be regarded as "unable to make a decision" (see above) if it is shown that she is unable to understand the information relevant to the decision, retain that information (even for a short period), use or weigh that information as part of the process of making the decision, or communicate that decision (section 3(1) MCA 2005); Miss V would be expected to be able to understand the "reasonably foreseeable consequences of deciding one way or another" (section 3(4) MCA 2005) (the functionality test);
v) In order to have capacity to make decisions about contraception, Miss V would need to be able to understand and weigh up the immediate medical issues including (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: see Bodey J in A Local Authority v Mrs A & Mr A  EWHC 1549 (COP).
Less restrictive method of contraception
vi) I must have regard to the purpose for which contraception is needed being effectively achieved in a way that is less restrictive of Miss V's rights and freedom of action: (section 1(6) MCA 2005): see A Local Authority v K (By the Official Solicitor)  EWHC 242 (COP) at ;
vii) Any decision taken by the court on behalf of Miss V must be taken in her best interests (section 1(5) MCA 2005);
viii) In making such a decision, I must have regard to all the circumstances (section 4(2) MCA 2005), including the possibility that she may at some point in the future acquire capacity to make the decision (section 4(3) MCA 2005);
ix) I must ensure that Miss V has been given the chance to participate as fully as possible in the decision (section 4(4) MCA 2005), because her views (section 4(6)(a) MCA 2005) and the factors which she would be likely to consider if she were able to do so (section 4(6)(c) MCA 2005), are relevant as are the views of her family (section 4(7) MCA 2005), and should be given appropriate/relevant weight
x) Article 8 ECHR rights are engaged in relation to the integrity of body.
i) Is it in Miss V's best interests that she receives contraceptive protection?
ii) If so, what form of contraception is in her best interests, as the less restrictive option?
iii) If contraception is in her best interests, is it in her interests that such contraception is first trialled?
iv) Linked to (ii), are there some forms of contraception which are so invasive and restrictive that, even if contraception would generally be regarded as being in her best interests, the disadvantages or restrictions associated with these invasive forms of contraception would outweigh the benefit(s)?
"Even though I believe that the plan is robust and the family are working with us, breaches are still happening, and the last two breaches, the parents did not even know P's whereabouts.
This will give us an extra layer of protection, in the event that anything goes wrong, or not within the family's control; P is very vulnerable, and for instance, she would have happily got into the car with a stranger if she had been asked to. The consequences are dire to her welfare. Our visits are within the working day; we cannot monitor 24/7.
P has a learning disability, her understanding about risk is limited. She has not much sense of road safety or her own personal safety; she is very likeable and happy young lady, who could be easily targeted".
i) She does not wish to become pregnant again, or to have further children;
ii) She wishes to avoid surgery;
iii) She does not want intrauterine contraception;
iv) She would favour the patch (the view formed by the community matron after extensive work).
i) Adverse side-effects do not affect every person who receives hormonal contraception;
ii) There are some positive side effects of hormonal contraception;
iii) It is proposed that the contraception would be trialled. If there are painful or uncomfortable side effects, then the patch could be withdrawn and the matter restored to court. Those monitoring the use of the patch would need to be vigilant to this possibility.
Discussion and conclusion
"Due to [Miss V]'s lack of insight, she is unable to understand her vulnerability when out in the community, particularly with regards to strangers approaching her and possibly asking her to get into a car, or the fact that she may get lost and be unable to find her way back. [Miss V] showed no understanding of the support that she needs for personal safety."