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Family Law

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Court of Protection Practice and Procedure Conference 2016

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29 AUG 2013

CAPACITY: A NHS Trust v DE (by his Litigation Friend the Official Solicitor) [2013] EWHC 2562 (Fam)

(Court of Protection, Eleanor King J, 16 August 2013)

The 36-year-old man suffered with a long-term learning disability.  However, with years of support from his parents, care workers, and clinicians, by 2009 he was capable of semi-independence and undertaking day-to-day tasks.  He was regarded as being gentle, friendly, and popular, socialising with friends and maintaining a relationship of ten years with a woman who also suffered from a learning disability, albeit to a less severe standard.  She fell pregnant and, subsequently, gave birth to their child - causing much concern from her own and the man's parents over whether or not the man had the mental capacity to consent to sexual relations. After discussions with the family GP, and taking into consideration the man's insistence that he did not want any more children, the man's parents decided that it would be in his best interests for him to have a vasectomy.

Following permission sought from the applicant NHS Trust, granted in October 2012, work was carried out with the man by a community learning disability nurse and a clinical psychologist in order to assess his understanding of a vasectomy procedure, and whether he had the capacity to consent to sexual relations with his girlfriend.  By July 2013, both the nurse and the psychologist were of the opinion that the man displayed the capacity to consent to sexual relations, but not the capacity to consent to using contraception.  An independent psychiatric report concluded that a vasectomy would be the most effective and beneficial means of contraception for the man, and would be carried out with his best interests in mind.

The evidence that the man lacked the capacity to consent to a vasectomy was never disputed: the subject was left to the court to decide what would be the best action to take for him.

Having regard to Article 8 of the European Convention of Human Rights, in conjunction with s4(2) of the Mental Capacity Act 2005, the court had a duty to make a decision with an aim to maintain the continuation of the man's current semi-independent lifestyle. Eleanor King J ruled that it would, indeed, be in the man's best interests to have a vasectomy. It was made very clear that, despite the routine nature of the procedure, the decision to sterilise the man was taken extremely seriously by the court at all times throughout the hearing process.  


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