The Mental Health Trust et al v DD and BC

Summary

This is the sixth judgment in nine months, five of which have been publicly reported, concerning DD – a 36-year old woman with Autistic Spectrum Disorder and mild to borderline learning disability – who has an extraordinary, tragic, and complex obstetric history. Permanent substitute carers, five of them in adoptive homes, are raising her six children, now aged between 6 months and 12 years. She has no continuing contact with any of them and has never demonstrated the desire or capacity to engage with the level of support which is likely to be required to assure a child's safety in her care. A summary of the background to the proceedings can be found here.

The earlier judgments concerned:

1.      Ante-natal care and pre-birth scanning ([2014] EWCOP 8);

2.      The manner and location of delivery of the baby (caesarean section in hospital) ([2014] EWCOP 11);

3.      The administration of short-term contraception at delivery, and education about future contraception ([2014] EWCOP 13);

4.      The administration of short-term contraception post-delivery ([2014] EWCOP 44);

5.      The further administration of short-term contraception pending this hearing (December 2014).

We summarised and commented upon the two major decisions (2) and (3) here.

The present instalment called upon Cobb J to determine DD's capacity to litigate and to consider and make decisions concerning long-term contraception and/or therapeutic sterilisation, and, if lacking such capacity, to determine what was in her best interests. His Lordship held that she lacked the relevant capacity and that it was in her best interests to be sterilised. It should be stressed at the outset that this is an exceptional case on its facts requiring judicial relief in most extreme circumstances.

(1)   Mental incapacity

Illustrating the importance of identifying the relevant information before determining capacity, Cobb J held:

"66. … [I]n deciding on contraception, type of contraception and/or sterilisation, DD would in my judgment be expected to have regard to the following 'relevant information' specific to her:

i)  the risk of a thrombo-embolic disease during any future pregnancy (as mentioned above, DD suffered a thrombotic embolism during her fourth pregnancy);

ii)  the risk of delivering a pre-term infant (her fourth child was born at 29 weeks and suffered breathing difficulties);

iii) the impact on DD's mental and emotional health of any further pregnancy (DD has suffered from a delusional disorder following her second and third pregnancies);

iv)  the additional risks of a home birth for DD (which would always be likely to be her preferred mode of delivery);

v) the risk of placenta accreta; as mentioned above ([9](ii)), given that DD has undergone four caesarean sections, this would be particularly dangerous for DD, given the significant risk of extensive haemorrhaging at the point of removal; if bleeding cannot be stemmed DD faces the prospect of hysterectomy;

vi)  that she faces considerable (and, with each pregnancy, increasing) risks to her life through the delivery of any child. Vaginal birth after caesarean carries considerable risks associated with rupture of the uterus; this is particularly acute given that the uterine wall is now seen to be 'tissue thin'; caesarean section carries risk of operative failure, adhesions or bowel or bladder injury, and the general risks associated with general anaesthetic."

After a careful and comprehensive analysis of the evidence, it was decided that, by virtue of her Autistic Spectrum Disorder, "[t]he evidence strongly indicates that DD is unable to retain much, if any, information relevant to this critical decision. However, I am wholly satisfied that she is unable to understand, and more specifically to weigh, the relevant information" (para 79).

(2)   Human rights

The proposed treatment plan involved authorising the applicants to enter her home, if necessary by force, and remove and convey her to hospital as a day patient for the sterilisation procedure under general anaesthetic, and to use reasonable and proportionate measures to provide the treatment, even if any deprivation of liberty resulted. DD's human rights considerations were inextricably bound up in the best interests determination.

Permission to intrude into the privacy and sanctity of her home and authorising compulsory treatment clearly interfered with Article 8. Moreover, insofar as the proposed sterilisation was concerned, Cobb J held that "private life" under Article 8 incorporated the right to respect for both the decisions to become and not to become a parent which applied to both DD and her partner, BC, who had a more significant learning disability. Interestingly, with respect to Article 12 (the right to marry and to found a family), his Lordship held:

"100. Although Article 12 reflects an absolute right, its limits remain poorly defined.  Both counsel submit that Article 12 ECHR does not contain a free standing right to found a family in the absence of marriage; they submit that this is one 'conjunctive' right, not two 'disjunctive' rights.  In my view the words "this right" in the Article strongly suggests that these two apparently separate rights, which are capable of operating independently of each other (i.e. "to marry" and "to found a family"), are in fact to be treated as linked, indeed effectively as one single right, and therefore is of no immediate application here. 

101. It seems to me, in any event, that even if "the right… to found a family" were to be viewed independently of the "right to marry" it would offer little more protection to the individual (DD) than the provisions of Article 8.  I would further have had little trouble in concluding that the sterilisation procedure proposed is neither an arbitrary nor disproportionate interference with any Article 12 right to found a family (if it were indeed found to exist separate from marriage). As I have heard no detailed contrary argument beyond that reflected in this judgment, it is not appropriate, or necessary, for me to make further comment." (emphasis added)

Further pregnancy, especially if concealed from the authorities, would be a significantly life-threatening event for DD. The risk of uterine rupture was not predicable and, were it to occur, would almost certainly be fatal to her and the infant if a vaginal birth were attempted unsupervised outside of a maternity unit. Not intervening therefore potentially engaged her right to life under Article 2:

"32. … It may well be that as the jurisprudence further develops beyond Rabone, DD's current situation would be considered to give rise to an operational duty.  But my view, on these facts and at this time, is that the risk to DD's life is not so 'immediate' as to impose on the Applicants a positive operational duty to act under Article 2, separate from its statutory and common law obligations."

Interesting reference was also made to the CRPD:

"102. I have been addressed briefly by counsel on the potential import of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), ratified by the UK in 2009 although not yet incorporated into English law.  In my judgment, no discrete argument under the UNCRPD arises in this case.  In any event, as an undomesticated international instrument, the Convention has no direct effect (see Lord Bingham in A v Secretary of State for the Home Department [2005] UKHL 71; [2006] 2 AC 221 at [27]) and I do not consider it necessary to address its potential relevance further."

(3)   Best interests

Four of DD's six children were born by caesarean section, and four children were born in the last five years. The realistic options with regard to best interests were limited to (a) the insertion of a 'coil' or (b) laporoscopic sterilisation. This was a rare case because the pregnancy stakes were high: DD could pay for pregnancy with her life. The professionals were unlikely to be made aware of the removal of a long-term coil, leaving her exposed to the risk of further pregnancy. Moreover, repeated administration of long-term contraceptive, by way of three-monthly injections or repeated coil insertion, would cause further intrusion into her private life which she found utterly objectionable.

Cobb J emphasised that "best interests" was not confined to best "medical" interests but instead embraced a wider notion. In a careful balancing exercise, to which we cannot here do justice, his Lordship considered the benefits and burdens of the coil and sterilisation options (paras 108-111). Those in favour of the latter considerably outweighed the former. There were also two factors of magnetic importance namely:

1.      Future pregnancy poses such a high risk to DD's life that the option which most effectively reduces the prospects of this should be preferred; this is one of those exceptional cases where medical necessity justifies the considerable interference;

2.      Sterilisation is the treatment which most closely coincides with DD's dominant wishes and feelings to be left alone to enjoy a 'normal' life free from intrusion by health and social services.

Her fertility was not found to be a magnetic factor: "while this case is not about eugenics, it is clear that her fertility brings no realistic prospect of parenting a child. Rather than being a benefit, it is a burden to her, bringing with it the prospect of ongoing long-term intrusion by health and social services into her life" (para 114). Her wishes and feelings (paras 115-122), and those of her partner (paras 123-128), were taken into account during the detailed best interests analysis.

With regard to less restrictive options, Cobb J held:

"97. Section 1(6) does not require me necessarily to choose the less restrictive option where a choice exists.  I am obliged to have "regard" to the principle of less intervention, but can plainly opt for the intervention which is not the least restrictive if it is in the best interests of the individual involved: see C v A Local Authority [2011] EWHC 1539 (Admin) per Ryder J, at [61].

98. It is accepted by counsel, unsurprisingly, that sterilisation is not the 'less restrictive' medical option in terms of irreversible (or largely irreversible) treatment to bring an effective end to child-bearing opportunities for DD; it is indeed the more, or most, restrictive.  DD's "rights and freedoms" must be viewed in a wider context than just the medical procedure itself; her 'rights and freedoms' include the clear right to respect for her privacy.  Sterilisation is in this context, in fact, much more likely to free her from further intrusion of her 'private life' from professionals, whereas the insertion of a coil (carrying with it a greater need for monitoring and in due course replacement/removal) would not.  In this wider sense, sterilisation is in my judgment the less restrictive of the two principal options under consideration."

In conclusion, it was held to be in DD's best interests to have the therapeutic sterilisation and that it was necessary to withhold the date of the procedure, due to the risks, from DD and BC. In terms of the practical arrangements:

"136. Thus it can be seen that each forced entry to the home has been (understandably) followed by escalating levels of distress experienced and displayed on the part of DD and BC.  This is of real concern to me.  I repeat what I said prior to the third such forced entry which I authorised in my 4 July 2014 judgment ([2014] EWCOP 11 [131]):

'Any physical restraint or deprivation of liberty is a significant interference with DD's rights under Articles 5 and Article 8 of the ECHR and, in my judgment, as such should only be carried out:

a)      by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD;

b)      as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so;

c)       in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible;

d)      in accordance with any agreed Care Plans, Risk Assessments and Court Orders."

Comment

This case illustrates perhaps the extremities of the powers available to the Court of Protection in the most extreme sets of circumstances. The judicial assessment of capacity, best interests, and human rights considerations is textbook (when gauged by reference solely to the MCA as it stands: see the last paragraph below). Whilst the outcome of the case is of course extreme – envisaging the forcible entry, removal, and sterilisation of a vulnerable adult – the reasoning is comprehensive with delivered the utmost careful consideration.

We would emphasise three interesting, though somewhat ancillary, aspects of the judgment. The first is the helpful summary of the source of respective duties on the public authorities involved in DD's welfare (see paras 22-28, with mention of the Care Act 2014). The second is the potential recognition of the Article 2 operational duty, developing Rabone v Pennine Care Foundation Trust [2012] UKSC 2. The law in England and Wales presently promotes ugly Samaritanism (see N. Allen, 'The right to life in a suicidal state' (2013) 36 International Journal of Law and Psychiatry 350–357). And the domestic courts have yet to formally recognise the duty to take reasonable precautions where public authorities know, or ought to know, of a real and immediate risk to the life of someone suicidal in the community. His Lordship's recognition of potentially further development of the duty is therefore welcome, albeit that the duty would not have been triggered on the facts.

Finally, it is worth stressing the somewhat short shrift given to the arguments regarding the potential import of the 'undomesticated' UNCRPD with its lack of direct effect.   We note, first, that the ECtHR is increasingly citing the CRPD in its analysis of issues relating to capacity (for example, the case of MS v Croatia, discussed elsewhere this month), as did the Supreme Court in Cheshire West.  Second, we would suggest that the CRPD would, in fact, have added a significant element in this case.   Indeed, paying proper heed to the demand from the Committee on the Rights of Persons with Disabilities that decisions in relation to those said to lack capacity are to be taken on the basis of their will and preferences may have led to a very different outcome to that reached by Cobb J.  Whether that outcome would – in fact – have served DD is a question that will no doubt be debated for some time as we continue to wrestle with the implications of the CRPD for domestic law.