Re DE

Summary: This is the first reported case in which the court has found that it was in the best interests of an incapacitated learning disabled adult to have a vasectomy as a method of contraception. DE was 37 years old and had a long-term partner PQ, with whom he had fathered a child, XY. At the time the child was conceived, DE probably lacked capacity to consent to sexual relations, as his understanding of the mechanics of sexual intercourse and the risks of pregnancy and sexually transmitted infections was very limited. The pregnancy and birth of his child had been very disruptive to DE, and he consistently expressed the view that he did not want to have more children. His parents, who were very supportive of and committed to DE, and who cared for him, considered that it was in his best interests to have a vasectomy.

After an intensive programme of education, DE acquired capacity to consent to sexual relations, although it would be necessary for him to have so 'top-up' sessions to ensure that he remembered how to keep himself safe from sexually transmitted infections and diseases. DE did not gain capacity to make decisions about contraception, including a vasectomy, and he was judged to be unable to acquire such capacity even with further support.

The court held that it was in DE's best interests to have a vasectomy, notwithstanding that this would permanently remove his ability to have children (since the chances of undergoing a successful reversal, funded by the NHS, were slight). As noted by Eleanor King J at para 94 of her judgment, the factors in favour of DE having a vasectomy were the following:

i) DE's private life

a) DE's relationship with PQ is enduring and loving. It is very important to DE and he was deeply distressed when there was a break at the beginning of the year. The relationship should be respected and supported in the way all other aspects of DE's life are respected and supported.

b) The relationship has been sexual in the past and DE (and PQ) would like to, and should be permitted, to resume their sexual relationship.

c) DE is unequivocal and consistent in expressing his wish not to have any more children.

d) The only way that this can be ensured is by DE having a vasectomy. There is a high (over 18%) chance of pregnancy using condoms; DE's technique is poor and he cannot be relied upon consistently to use them.

e) If another child was born not only would DE be deeply distressed but a removal of the child from PQ would be very likely to result in the breakdown of the relationship.

ii) DE's relationship with his parents

a) DE's only other consistently held and expressed view is that he wants to live at home with his parents. He is wholly dependant upon them for his physical and emotional welfare.

b) DE's parents were deeply distressed by PQ's pregnancy and the birth of XY. Although they are, JK says, getting through it, they have obviously been traumatised by all that has gone on since PQ's pregnancy was discovered in 2010. Those events remain raw and JK exhibited an almost tangible fear of the consequences of a second pregnancy. They know their anxiety has an impact upon DE, I am sure they do their best to protect DE from it but they are only human and inevitably DE is acutely aware of their distress; this has had a significant impact upon his own emotional comfort and well being. I have no doubt that a second pregnancy would have an even greater impact upon the family particularly as FG and JK would inevitably regard such a pregnancy as having been avoidable.

c) DE's parents support and protect DE, they organise every practical aspect of his life. It is not unreasonable to expect that if they do not have reassurance that DE has the benefit of effective contraception then the level of independence they will believe it is in his best interests for him to be afforded will be compromised.

iii) DE's Independence

a) PQ's pregnancy followed by the interim declaration that DE did not have the capacity to consent to sexual relations has had very serious consequences for DE, resulting in his losing, for a period, all autonomy and his being supervised at all times. Whilst there has been some easing of supervision, his life is still very different from his life before XY was born and he is still never alone with PQ.

b) The loss to DE has been compounded by the fact that due to his learning difficulties DE cannot 'pick up where he left off'; skills which took years to acquire have, when not used, been lost, as has much of his confidence. The fact that DE has acquiesced as restrictions have been imposed upon him does not make the loss to him any less profound; it is both the entitlement and in the best interests of any person with significant disabilities, (whether learning or physical), that they be given such support as will enable them to be as much an integral part of society as can reasonably be achieved. It is simply stating the obvious to observe that DE's quality of life is incomparably better when he can go and have a coffee in town with PQ or go to the local gym with his friend. As Mr McKendrick said as a person with learning disabilities, his successes and failures in life are measured differently to the non learning disabled population.

The only factor that was identified by any party as being against DE having a vasectomy was identified thus at para 97:

i) The surgical procedure

a) The slender risk of DE suffering from long term scrotal pain and or discomfort, a risk further reduced by the fact that it is intended that the procedure would be carried out by a consultant urologist with a consultant anaesthetist. DE has tolerated local anaesthesia in the past and there is no reason to believe that he will not do so again. One or other of his parents will be with him throughout.

b) The procedure is non therapeutic.

c) The procedure does not protect against the transmission of STIs or STDs.

The balance sheet clearly fell in favour of DE having the procedure.

Comment: The courts have never said that the use of sterilisation of an incapacitated person as a method of contraception is not permissible, but it is clear that procedures which render a person permanently infertile will receive the most careful scrutiny by the courts, and will only be authorised as being in P's best interests in the rarest of cases. In DE's case, his clear and consistent wish not to have more children, which was informed by his actual experience of fatherhood, was of central importance. Other factors relied on may raise an eyebrow - should the distress caused to DE's parents by his unexpected fathering of a child and the disruption that a further pregnancy would cause, be taken into account? The issue of the loss of DE's independence if he did not have the vasectomy is particularly interesting. That loss of independence would be triggered by DE's parents (and others) wishing to avoid a pregnancy, and not being able to rely on DE remembering to use condoms, or using them effectively. But if DE has capacity to consent to sexual relations, can he be prevented from having sex because his contraceptive method is unreliable? In DE's case, this potentially thorny problem could be circumvented by reference to DE's clear wish not to have more children, but in another case, such consequences may not be something that can properly be taken into account, if the effect would be to subvert a wish to exercise a capacitous choice to have sexual intercourse.

One potential area of confusion highlighted by the judgment is whether a man needs to understand information about female contraceptive options in order to have capacity to make a decision about contraception. This issue was raised but not determined, as DE would have lacked capacity whichever approach was taken. Practitioners should be alert to this question and lack of guidance from the court when conducting capacity assessments. There are at least three different possible approaches - requiring men to understand only the options for them (i.e. condoms and vasectomy); requiring them to understand all the possible options for them and for any female partner (including the contraceptive pill, IUDs, the contraceptive injection and sterilisation); and requiring them to understand the male options and, if they are in a relationship, those female options which are actually a possibility and which their partner has decided, or may decide, to use.