The Court of Protection's judgement in the recent Re DE case has now been published. This case received significant press attention since it represented the first time that the Court has sanctioned
The Court of Protection's judgement in the recent Re DE case has now been published. This case received significant press attention since it represented the first time that the Court has sanctioned the sterilisation of a man unable to consent to such a procedure and, as such, has been described as a landmark ruling.
Background
An NHS Foundation Trust ("the Trust") applied to the Court for a range of declarations which would allow for the vasectomy of DE, a 37 year old man who suffers from a learning disability. The Trust argued that he could not consent to this but that it would be in his best interests.
With his parents' support, DE was described as having "prospered and achieved far beyond what may have been expected given his level of disability". He exercised a notable degree of independence in his life, and had learned to swim and get a bus on his own. In addition, he enjoyed a "long standing and loving relationship with a woman [(PQ)]", who is also learning disabled. The Court heard that it was "unusual…remarkable…and precious" to see such an enduring relationship between two significantly learning disabled people."
PQ unexpectedly became pregnant with DE's child in 2009 and later gave birth to child XY. The Court heard that PQ and DE were unable to look after XY themselves. The impact on DE, PQ and their families' lives was described as "profound".
A psychiatric report of DE found that DE did not have capacity to consent to sexual relations or, particularly to the use of contraception. Consequently, protective measures had to be established by Adult Safeguarding to ensure that DE and PQ were not left alone. DE had to be supervised at all times so as to avoid chance meetings with PQ. His family, it was argued, had become "fearful" of the consequences of a second pregnancy.
DE suffered considerable distress as a result of his parents' anxiety, and because of his enforced supervision, lost a sense of independence, confidence and privacy. DE was "clear that he did not want any more children".
Despite the noted strain on DE and PQ's relationship, which caused distress to DE, the relationship endured, and DE was later deemed to have capacity to consent to sexual relationships (and had articulated that he desired this) but not yet to the use of contraception.
DE's parents considered that the best way to achieve DE's wish not to have any more children, which they argued was in his interests, and to restore as much independence as possible to his life, was for him to have a vasectomy.
The Trust therefore applied to the Court for the following declarations:
In reaching her judgement, Mrs Justice King DBE considered a range of psychiatric reports and witness testimonies from DE's parents, carers and treating medical and community staff.
Legal issues
The Court was asked to consider ss. 4 and 5 of the Mental Capacity Act 2005 ("the Act") in assessing DE's best interests, and the list of relevant factors stipulated by the Act. Under s. 4(2), the Court was to consider all the "relevant circumstances". The term "best interests" was informed by numerous cases and, particularly:
Citing Re B (a patient), the Court considered that a vasectomy could be held to be in someone's best interests if it would improve the quality of their life and/ or lead to lessened supervision.
The Court was satisfied that DE did not wish to have another child and considered that it was unlikely that he might later change his mind. It considered also that DE did not have the capacity to consent to a vasectomy, and could not weigh up the competing arguments for and against having one.
The Court was of the view that DE's best interests in avoiding having further children would best be achieved by a vasectomy (as opposed to reliance on contraception). The Court also noted the impact on DE's life should he not have a vasectomy, particularly that the enforced levels of supervision – and, conversely, the loss of independence – would continue. In light of this, the Court reached the view that DE's best interests would be served by allowing him to resume the life he had led before PQ's pregnancy, including his (unsupervised) relationship with PQ. The Court was of the opinion that if another child was born to PQ, then it would cause direct distress to DE and be very likely to result in the breakdown of their relationship.
S.4(6)(c) of the 2005 Act required the Court to take into account other factors which DE would be likely to consider if he were able to do so (known as "substituted judgement"). The Court decided here that DE's reliance and affection for his parents meant that: (i) it was likely he would consider the benefit to them of avoiding further anxiety and strain which may be caused by his not having a vasectomy; and (ii) such benefit to his parents would be of significant benefit to him.
The Court concluded that it was overwhelmingly in DE's best interests to have a vasectomy, though was mindful that making order "permitting the lifelong removal of a person's fertility for non-medical reasons requires strong justification". The Trust's requests for declarations were, therefore, granted. The Court declared that the Trust's employees could lawfully take reasonable and proportionate steps to carry out the procedure.
Background
An NHS Foundation Trust ("the Trust") applied to the Court for a range of declarations which would allow for the vasectomy of DE, a 37 year old man who suffers from a learning disability. The Trust argued that he could not consent to this but that it would be in his best interests.
With his parents' support, DE was described as having "prospered and achieved far beyond what may have been expected given his level of disability". He exercised a notable degree of independence in his life, and had learned to swim and get a bus on his own. In addition, he enjoyed a "long standing and loving relationship with a woman [(PQ)]", who is also learning disabled. The Court heard that it was "unusual…remarkable…and precious" to see such an enduring relationship between two significantly learning disabled people."
PQ unexpectedly became pregnant with DE's child in 2009 and later gave birth to child XY. The Court heard that PQ and DE were unable to look after XY themselves. The impact on DE, PQ and their families' lives was described as "profound".
A psychiatric report of DE found that DE did not have capacity to consent to sexual relations or, particularly to the use of contraception. Consequently, protective measures had to be established by Adult Safeguarding to ensure that DE and PQ were not left alone. DE had to be supervised at all times so as to avoid chance meetings with PQ. His family, it was argued, had become "fearful" of the consequences of a second pregnancy.
DE suffered considerable distress as a result of his parents' anxiety, and because of his enforced supervision, lost a sense of independence, confidence and privacy. DE was "clear that he did not want any more children".
Despite the noted strain on DE and PQ's relationship, which caused distress to DE, the relationship endured, and DE was later deemed to have capacity to consent to sexual relationships (and had articulated that he desired this) but not yet to the use of contraception.
DE's parents considered that the best way to achieve DE's wish not to have any more children, which they argued was in his interests, and to restore as much independence as possible to his life, was for him to have a vasectomy.
The Trust therefore applied to the Court for the following declarations:
- DE did not have capacity to decide as to whether he underwent a vasectomy and consent to this procedure;
- That it was lawful and in DE's best interests that he should undergo vasectomy; and
- It was lawful for the Trust to take any steps which are medically advised by the treating clinicians at the Trust to undertake this procedure.
In reaching her judgement, Mrs Justice King DBE considered a range of psychiatric reports and witness testimonies from DE's parents, carers and treating medical and community staff.
Legal issues
The Court was asked to consider ss. 4 and 5 of the Mental Capacity Act 2005 ("the Act") in assessing DE's best interests, and the list of relevant factors stipulated by the Act. Under s. 4(2), the Court was to consider all the "relevant circumstances". The term "best interests" was informed by numerous cases and, particularly:
- was an objective test (Burke v GMC [2005]);
- was defined specifically so as to be in DE's best interests and not in the interests of others (such as his parents'), although these could indirectly be a factor so far as others' interests related (in turn) to DE's best interests (Re Y [2007] 2 FCR 172);
- depended on the individual circumstances of the case (Re M.ITW and Z [2009] EWHC 252); and
- could include a factor of "magnetic importance" in influencing or even determining the outcome (Re M.ITW and Z).
Citing Re B (a patient), the Court considered that a vasectomy could be held to be in someone's best interests if it would improve the quality of their life and/ or lead to lessened supervision.
The Court was satisfied that DE did not wish to have another child and considered that it was unlikely that he might later change his mind. It considered also that DE did not have the capacity to consent to a vasectomy, and could not weigh up the competing arguments for and against having one.
The Court was of the view that DE's best interests in avoiding having further children would best be achieved by a vasectomy (as opposed to reliance on contraception). The Court also noted the impact on DE's life should he not have a vasectomy, particularly that the enforced levels of supervision – and, conversely, the loss of independence – would continue. In light of this, the Court reached the view that DE's best interests would be served by allowing him to resume the life he had led before PQ's pregnancy, including his (unsupervised) relationship with PQ. The Court was of the opinion that if another child was born to PQ, then it would cause direct distress to DE and be very likely to result in the breakdown of their relationship.
S.4(6)(c) of the 2005 Act required the Court to take into account other factors which DE would be likely to consider if he were able to do so (known as "substituted judgement"). The Court decided here that DE's reliance and affection for his parents meant that: (i) it was likely he would consider the benefit to them of avoiding further anxiety and strain which may be caused by his not having a vasectomy; and (ii) such benefit to his parents would be of significant benefit to him.
The Court concluded that it was overwhelmingly in DE's best interests to have a vasectomy, though was mindful that making order "permitting the lifelong removal of a person's fertility for non-medical reasons requires strong justification". The Trust's requests for declarations were, therefore, granted. The Court declared that the Trust's employees could lawfully take reasonable and proportionate steps to carry out the procedure.