Adult patient – Consent to treatment – Patient lacking capacity – Adult male, DE, having learning difficulties

A NHS Trust v DE (appearing by his litigation friend the Official Solicitor) and others

The first respondent, DE, was a 36-year-old man who suffered from a lifelong learning disability. He was assessed as having a mental age of between six and nine. He lived with his parents. With their help and that of the local disability services he had achieved far beyond what might have been expected given his level of disability.

He had achieved a modest measure of autonomy in his day-to-day life and was in a long-standing and loving relationship with a woman, PQ, who also suffered learning disability. PQ also lived with her parents. The relationship was supported by both sets of parents and the local authority. PQ became pregnant and had a child. A special guardianship order was put in place in favour of the maternal grandmother.

There were legitimate concerns that DE might not have capacity to consent to sexual relations, consequently, protective measures had to be put in place to ensure that DE and PQ were not left alone and DE was supervised at all times. DE was clear that he did not want any more children; the events had caused him considerable distress and he denied that the baby was his as he did not understand that anything he and PQ had done together had resulted in a child.

There was no question of DE having the capacity to make decisions as to the use of contraception, so his parents formed the view that the best way, in his interests, to achieve DE’s wish not to have any more children and to restore as much independence as possible to him was by his having a vasectomy. The applicant NHS Trust applied to the instant court for a number of declarations in respect of DE. Following the Trust’s applications, the Official Solicitor was invited to act as DE’s litigation friend as he had been deemed to lack capacity to act on his own behalf in the proceedings.

An independent psychiatric report prepared under instruction from the Official Solicitor concluded that DE’s best interests lay in a vasectomy being carried out. An independent scrotal urologist expressed the view that the likelihood of severe scrotal pain following vasectomy was less than 0.5%. A consultant anaesthetist gave evidence that the procedure could be carried out under local anaesthetic with very low risk, but that if it were necessary to convert to general anaesthetic, then that was also ‘very safe’. During the time between the making of the application and the hearing, work was undertaken with DE to assist him to acquire capacity to enter into sexual relations; it having become clear that both he and PQ would like to engage in such behaviour in the future.By the time of the hearing, DE was considered to have the capacity to consent to sexual relations, although it was accepted by all parties that he did not have capacity to consent to contraception and would not gain the necessary capacity.

The issue for determination was whether it was in DE’s best interests for the court to grant the following declarations: (i) that DE did not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to the procedure; (ii) that it was lawful and in DE’s best interests that he should undergo a vasectomy; and (iii) that it was lawful for the Trust to take any steps which were medically advised by the treating clinicians at the Trust responsible for DE’s care to undertake the procedure which might include the use of a general anaesthetic and all such steps as might be necessary to arrange and undertake the procedure including general anaesthesia. All parties accepted that DE wished to continue to live at home.

The Official Solicitor, on behalf of DE, submitted that he did not seek to submit that it would not be in DE’s best interests to allow the vasectomy, however, he would not advance a positive case as to whether it was in DE’s best interests to have the procedure. Consideration was given to sections 1(5) and 4 of the Mental Capacity Act 2005 (the 2005 act), article 8 of the European Convention on Human Rights and articles 23 and 26 of the United Nations Convention on the rights of persons with disabilities.

The application would be allowed.

On the evidence and in all the circumstances it was overwhelmingly in DE’s best interests to undergo a vasectomy. The factors in favour of such a course were: (i) DE’s private life; (ii) DE’s relationship with his parents; and (iii) DE’s independence. First, his relationship with PQ was enduring and loving and was very important to him. The relationship was to be respected and supported in the way all other aspects of DE’s life were respected and supported. The relationship had been sexual in the past and the parties to that relationship would like, and should be permitted, to resume that sexual relationship.

DE had been unequivocal and consistent in his wish not to have any more children. In the circumstances, that could only be ensured by DE having a vasectomy. If another child were 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. Secondly, DE’s only other consistently held and expressed view was that he wanted to live at home with his parents. His parents had been deeply distressed by PQ’s pregnancy and the birth of the child. Their distress had had a significant impact upon DE’s own emotional comfort and well-being.

A second pregnancy would have an even greater impact upon the family, particularly as the parents would inevitably regard such a pregnancy as having been avoidable. It was not unreasonable to expect that if the parents did not have reassurance that DE had the benefit of effective contraception then the level of independence that they would believe was in his best interests for him to be afforded would be compromised.

Thirdly, the consequences that had followed from PQ’s pregnancy had been very serious for DE and had resulted in his losing, for a period, all autonomy and his having been supervised at all times. Despite some easing of supervision, his life remained very different to that from before the child was born. The loss to DE had been compounded by the fact that, due to his learning difficulties, he could not ‘pick up where he left off’ skills which had taken years for his to acquire. Those skills had been lost and his confidence reduced. It was the entitlement and in the best interest of any person with significant disabilities (whether learning or physical) that they be given such support as would enable them to be as much an integral part of society as could reasonably be achieved.

DE’s desire not to have any more children was undoubtedly a magnetic factor which carried considerable weight, but, allowing DE to resume his long-term relationship with PQ and restoring him his lost skills and independence were as important, if not more so, when determining his best interests (see [50], [53], [59], [63], [64], [93]-[96], [98] of the judgment).

Accordingly, the declarations would be made (see [99] of the judgment).         

A (medical treatment: male sterilisation), Re [2000] 1 FCR 193 applied; K v A local authority [2012] 1 FCR 441 applied; Y (mental incapacity: bone marrow transplant) Re [1997] 2 FCR 172 considered; H (adult patient) (medical treatment), Re [2006] All ER (D) 372 (May) considered; M (vulnerable adult) (testamentary capacity), Re [2010] 3 All ER 682 considered; A Local Authority v K (by the Official Solicitor) [2013] 130 BMLR 195 considered.

Jane Tracey-Forster for the Trust; Angus Moon QC for DE; DE’s parents appeared in person; John McKendrick for the local authority; Victoria Butler-Cole for the health care trust.