Sterilization permission order for woman with impaired capacity

Yesterday in The Mental Health Trust v DD [2015] EWCOP 4, the England and Wales Court of Protection considered an application by three relevant authorities regarding the proposed sterilization of a woman aged 36, with an Autistic Spectrum Disorder and mild to borderline learning disability (full scale IQ of 70). She had 6 children, al of whom where in substitute care. There had been a number of prior applications in respect of contraception and pregnancy management.

DD was represented but did not engage in the proceedings. The evidence indicated that another pregnancy would raise medical risks for her, in circumstances where she was resistant to medical intervention.

At [5] the court observed:

The ethical, legal and medical issues arising here are self-evidently of the utmost gravity, engaging, and profoundly impacting upon DD’s personal autonomy, privacy, bodily integrity, and reproductive rights. The Applicants concede, through their counsel, that the relief which they seek in these proceedings amounts to an exceptional interference with DD’s right under Article 8 of the European Convention on Human Rights (‘ECHR’) to respect, in particular, for her private life. That concession is, in my judgment, rightly made. In this respect, I wish to emphasise three important points:

i) The Court of Protection will intervene in the life of a person who lacks capacity only where it is demonstrated that it is in the best interests of the vulnerable person to do so. Each case will be considered on its own facts;

ii) Those who lack capacity have the same human rights as everyone else, and are entitled to enjoy those rights without discrimination on account of their lack of capacity. The ECHR nonetheless recognises that it may be justifiable to interfere in their private lives, and even deprive them of their liberty, in certain circumstances;


iii) This is, in my judgment, an exceptional case on its facts; the Applicants seek a range of relief which is likely to arise only in the most extreme circumstances.

The court found that it would be in the best interests of DD that she be sterilized by way of a laparoscopic procedure.

[Case identified by Dr Amel Alghrani, Liverpool Law School. Twitter @alghrani]