On Friday the sterilisation of a 36 year old man was ordered by The Hon. Mrs Justice Eleanor King DBE in the Court of Protection. Does it sound like we’ve sunk back 60 years into history, and given the tabloids a delicious headline? This article will briefly summarise the decision in the case of A NHS Trust v DE (Appearing by his Litigation Friend the Official Solicitor) and FG and JK and C Local Authority and B Partnership Trust  EWHC 2562 (Fam) and set out what it really spells for future cases.
DE has been in a relationship with PQ for over 10 years. In 2009 PQ became pregnant and in 2010 she gave birth to DE’s child. Both DE and PQ have learning difficulties: DE’s particular difficulties result in his having an adult IQ of 40, and a mental age of a 6-9 year old child. PQ’s difficulties are less severe, but still considerable. Such a relationship between two people with these difficulties was described by DE’s social worker as ‘remarkable and very precious’.
Initially he refused to accept that anything he had done with PQ had resulted in the child…
The court described the impact the pregnancy and birth had on all parties concerned as ‘profound’. Up until PQ’s pregnancy was discovered, DE’s parents had worked extremely hard to give him as much independence and confidence as they could. It had taken years of hard work between DE, his parents and his social and support workers to get him to the stage where, amongst other things, he was able to independently get the bus to his day centre (with a phone call as a reminder) and independently walk through town to attend a local leisure centre where he swims and attends the gym with a friend. But when PQ was discovered to be pregnant, DE’s time alone with her was immediately stopped, and he was prevented from returning from the day centre alone on the bus for fear that he would get off and meet with PQ. In short, every effort was made to stop him spending any time alone with PQ, and along with the upset caused to his parents by the whole situation, the disruption this caused to his whole routine caused him ‘considerable distress’. Initially he refused to accept that anything he had done with PQ had resulted in the child and so this lack of understanding only compounded these difficulties.
Realising that DE’s independence could not continue to be restricted in the way it was, DE’s parents took him to the GP to ask about a vasectomy. This eventually led to the local NHS trust making an application to the Court of Protection for a declaration that a vasectomy should be carried out on DE. In fact none of the parties involved in the proceedings objected to this course of action (although the official solicitor expressed an opposition at the start of proceedings, by the end this had become no more than a neutral position).
It was established through a number of sessions with DE that, although he has now gained the ability to consent to sexual relations, he does not have and will never gain the ability to consent to contraception. Without considering female contraception, the only two options available to DE in this regard are the use of condoms and a vasectomy. Much work was done with DE in order to ascertain whether he could reliably and consistently use condoms and, although he had worked hard at these sessions, it was felt that he would not be able to use them with sufficient consistency in order to achieve the desired result. Given that even for a typical person being anything less than ‘very very careful’ the risk of condoms failing each year is 18%, the risk in relation to DE would be a significant one to bear in mind.
This inability to consent being the case, the Mental Capacity Act 2005 states that any ‘decision made, under this Act for or on behalf of a person who lacks capacity must be…made, in his best interests’. It therefore fell to the Court of Protection to make the decision as to whether a vasectomy was in DE’s best interests. In doing so the court had to take into account all relevant circumstances including:
Mrs Justice King was clear that ‘the court does not make such an order lightly’…
- any ascertainable wishes and feelings
- any beliefs that might affect his decision if he were capable of consent
- the views of those involved in caring for him.
In making its decision the court heard from numerous people including both parents, the NHS Trust, the official solicitor, an independent consultant in psychiatry, DE’s social worker, a community learning disability nurse, two consultant urological surgeons, DE’s GP, a consultant anaesthetist and a clinical psychologist. This was not a decision taken lightly.
In the end the decisive factors in concluding that it was indeed in DE’s best interests to order a vasectomy were as follows:
- The effect this child did have and the effect another child could have on DE’s personal life (including his ‘unequivocal and consistent’ expression of a wish not to have any more children and the fact that the best way to achieve this would be to allow a vasectomy).
- The effect not having a vasectomy would have on DE’s relationship with his parents; any further pregnancies would cause further distress which would in turn affect DE, and without a vasectomy they would not feel confident in allowing him the independence he had gained as a result of many years hard work.
- The fact that having this vasectomy would restore to DE the levels of independence he had enjoyed for many years prior to the birth. His loss of this temporarily being made worse by the fact that he cannot simply ‘pick up where he left off’, much hard work will now have to happen to restore this.
Yes, it was a legal first, but it will certainly not be the first of many.
In the end, the declarations originally applied for were given; the NHS trust has the right to carry out a vasectomy on DE and do any necessary actions in order to achieve this result.
Is this the start of something dangerous?
This article aimed to illustrate that, although on the surface the result of this case might strike some as disturbing, it really is nothing of the sort. Yes, it was a legal first, but it will certainly not be the first of many.
In the decision Mrs Justice King refers to a previous case, that of Re A (Male Sterilisation)  1 FLR 549 where a similar application was made. The circumstances in that case, however, were completely different: A was not already engaged in sexual relations and did not already have a child, nor would such an order have had any effect on his independence. In this case, the fact that DE had already experienced fathering a child, and the distress this caused, weighed heavily on the minds of those who spoke to him, as did his desire not to father any more children.
If such applications are to be made in the future, this is not a case that will be deemed to have set a precedent. Mrs Justice King was clear that ‘the court does not make such an order lightly’ and so in future cases it will be necessary for a court to carry out a thorough investigation into all the circumstances before coming to any decision as to whether to take such drastic action.
So what does this mean for future cases? The simple answer, really, is not a great deal.