Judge: Cobb J
Citation:  EWCOP 20
Miss V was a 21 year old woman with a severe learning disability, cerebral palsy and epilepsy. She is described in the judgment as having the understanding of a 3-5 year old and to be entirely unable to identify situations that may pose a risk.
In 2016 Miss V presented to her GP as 28 weeks’ pregnant, neither Miss V nor her mother apparently aware of her condition. All the professionals engaged in Miss V’s care agreed she did not have the capacity to consent to sexual intercourse.
Her baby was born by caesarean section following an order of the COP and immediately removed from her care. Both the fact of medical intervention and the removal of her baby are described as having caused Miss V great anguish: her social worker is noted in the judgment to observe that in 18 years of social work, she had never previously witnessed such extreme levels of distress.
An application was initially brought by the local Health Authority for an order for Miss V to be sterilised. This order was, however, abandoned in favour of an order for the prescription and application of a contraceptive patch.
Despite agreement as to the preferred method of contraception, the order was resisted by both Miss V’s mother, Mrs W, and the Official Solicitor on the basis that even the least restrictive form of contraception has side effects and that it was not appropriate or in P’s best interests for contraception to be administered “just in case”: she was considered not to be sexually active and was the subject of extensive safeguarding and supervision, being in the constant company of a family member, albeit that evidence suggested that there were occasional unintentional lapses in her supervision.
On the matter of Miss V’s capacity, the court found that she did have an ability to learn and could demonstrate a rudimentary understanding of some elements of contraception. However, applying the test as set down by Bodey J in A Local Authority v Mr and Mrs A & Mr A  EWHC 1549 (COP) Cobb J held: “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.” He determined, and it was agreed by all the parties, that Miss V lacked capacity to consent to sexual relations and to make decisions in relation to contraception. That having been said, Miss V was considered by those involved in her care to be capable of expressing views, and that although there was a limit on the weight which the court could reasonably attach to these views, given her lack of capacity, Cobb J was “nonetheless satisfied that she has a reasonable awareness of the contraceptive patch and its function and has indicated no opposition to wearing it” (paragraph 35).
In circumstances where the combined objective of the parties – endorsed by the court – to ensure that Miss V was protected from further harm, Cobb J went on to determine that contraception was in Miss V’s best interests. To do, he considered he needed to ask – in sequence – the following series of interlinked questions (at paragraph 24):
In determining whether the contraceptive patch should be administered, Cobb J endorsed the view that the safeguarding plan advanced by the local authority was as robust as it could be given the heavy reliance that it placed upon the continuous supervision of Miss V by her parents. He noted that the protection plan would be unaltered whether or not the contraception was administered. However, this did not mean – in his view – that there were:
Concerned, nonetheless, that the side-effects of the patch might be overly troublesome to Miss V, and that this could only be determined after a trial, Cobb J made a declaration that it was in her best interests for the contraceptive patch to be administered for a trial period of up to 6 months.
Cobb J was clearly aware of the sensitivity of the conclusion that he had reached. Confirming that his judgment was restricted to the facts of Miss V’s specific case, he concluded: “I wish to make clear that this decision is about Miss V, and her best interests; the decision is taken in the context of her unique situation. I wholly reject the submission on behalf of the Official Solicitor that by declaring contraception in Miss V’s best interests I would in one way or another be setting a precedent for all incapacitous and vulnerable women.” (paragraph 47).
We would echo this strongly, not least because the case should not be taken as a precedent for an approach to safeguarding which focuses on the ‘easier’ course of directing measures at the potential victim of abuse (whether those being consenting to the administration of medication, as here, or removing them from their home), rather than the perpetrators of the abuse, not least as this is directly contrary to the very concept of making safeguarding personal.