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‘Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.’The recent case of Mental Health Trust & Ors v DD and BC  EWCOP 4 has raised questions on the degree of consideration the COP must have to the ‘least restrictive’ option.
‘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  EWHC 1539 (Admin) per Ryder J, at para .Article continues below...
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. However, that is not the whole picture.
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.’
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‘While regard must be had to the principle of acting in a less restrictive way, the best interests principle takes priority i.e. the option which is in the person's best interests must be chosen which may not necessarily be the least restrictive option available.’In terms of Cobb J’s second ‘best interests’ argument, it is interesting to compare this approach to the principles of intervention in children cases. The draconian nature of state interference with Art 8 was considered in YC v UK (2012) 55 EHRR 967, where it was emphasised that ‘it is not enough to show that a child could be placed in a more beneficial environment for his upbringing’. This has been reiterated in the plethora of cases flowing from Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075 where the importance of the ‘least interventionist approach’ has been restated. For children then, the consideration is two fold: (1) has the threshold of harm been crossed? (2) What is the least interventionist measure that will guarantee the child’s future welfare?