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Case notes of Claire Wills-Goldingham QC: Sterilisation

 The Mental Health Trust, The Acute Trust & The Council v DD and BC

Reported as Re DD (No 4) (Sterilisation) [2015] EWCOP 4

Cobb J  4.2.15

Issue – whether and in what circumstances it can be considered to be in a patient’s best interests to undergo laparoscopic sterilisation by way of occlusion of the fallopian tubes under general anaesthetic

 This case is the culmination of lengthy litigation concerning a young woman who has Autistic Spectrum Disorder and mild to moderate learning disability with a full IQ scale of 70 (see 4.12 Code of Practice which includes “significant learning disabilities” as an example of meeting the “diagnostic test” – section 2 Mental Capacity Act 2005 (“MCA 2005”) for assessing capacity together with the 4 fold “functionality test” under section 3 MCA 2005). She had no capacity to litigate, to consider and make decisions over long term contraception and / or therapeutic sterilisation. The court therefore has to consider what was in her best interests applying section 1(5) MCA 2005.

 Background

 She had had 6 children – 4 by way of caesarean section and 4 of the children had been born in the last 5 years.  All the children were now placed with permanent substitute carers – 5 of them in adoptive homes.

The unanimous medical evidence, untested by way of cross examination by agreement of all parties (and the non attendance of DD and BC) was  that further pregnancies would place dangerously unsafe pressure on DD’s uterine wall and there was a significant risk of either placenta accrete or placenta praevia both of which could compromise DD’s life. Furthermore a further pregnancy would increase the risk of D suffering from a repeat of an intra-cranial embolism causing her to suffer protracted fitting.  DD and BC had a history of non co-operation with professionals and DD a history of concealing pregnancies – to the extent that they would be discovered post the 24 week limit during which a termination of pregnancy would normally be considered.

The previous judgments associated with this issue are:

Paufley J [2014] EWCOP8- scan and ante natal assessment with declaration to include forced entry, restraint and sedation

Cobb J [2014] EWCOP 11 – planned caesarean section, ancillary pre-operative treatment, forced entry, restraint and sedation, if necessary

Cobb J [2014] EWCOP 13 contraceptive education, short term contraception (Depo-Provera) at the point of delivery post birth

Cobb J [2-14] EWCOP 44 repeat short term (Depo-Provera) contraception

The judge was at pains to stress that this was a very rare case. It considers at para 24 the effect of the provision of section 1 of the Care Act 2014 when it comes to force (the requirement for local authorities to take steps to prevent abuse or harm of vulnerable adults) and it looks at the current piecemeal legislation in force and at para 25 the judgment of Munby LJ (as he then was) in A Local Authority v A [2010] EWHC 978 (FAM) – “the five main sources of local authority competence”.

Cobb J also considered the list of the “relevant information” at para 65 identified by Bodey J in A Local Authority v Mrs A (by the Official Solicitor) and Mr A [2010] EWHC 1549 (Fam).

And concerning the best interests test section 1(5) MCA 2005 he referred at para 85 to the decision of Eleanor King J (as she then was) in which she drew together a number of important principles from the authorities in A Health Authority v DE [2013] EWHC 2562 (Fam).

 Decision 

  1. DD lacked capacity to litigate
  2. DD lacked capacity to make decisions in respect of contraception
  3. It was in DD’s best interests for laporoscopic sterilisation to take place with all ancillary care and treatment
  4. In order that 2 above could be performed the court authorised that it was necessary for the Applicants to withhold from DD and BC relevant information concerning the date of the procedure
  5. The Applicants were authorised to remove DD from her home for this purpose
  6. The Applicants were also authorised to take all steps necessary and proportionate to give effect to the orders for sterilisation including forced entry and necessary restraint.

Discussion

 This case provides a very clear overview of all the authorities concerning the difficult decision of sterilisation with the balance sheet approach applied to sterilisation v contraception. It also considers the impact of European law – in particular Art 12 ECHR, the least restrictive options under section 1 ( 6) MCA 2005, forcible entry and the prevention of the knowledge to be imparted to DD and BC of the date of the procedure.  It is possibly the most wide ranging judgment on all of these very important issues affecting a person subject to the provisions of the Mental Capacity Act 2005.

Claire Wills-Goldingham QC

Colleton Chambers


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