A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam)
(1) The test for capacity to make decisions as to contraceptive treatment should be applied so as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues"), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each. (2) Questions do not need be asked as to the woman's understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care. (3) Mrs A did understand the proximate medical issues. (4) However, her decision not to continue taking contraception was not the product of her own free will: she was unable to weigh up the pros and cons of contraception because of the coercive pressure under which she had been placed both intentionally and unconsciously by Mr A. (5) The judge made no order as to Mrs A's best interests, preferring that an attempt be made to achieve a capacitated decision from Mrs A, through 'ability-appropriate' help and discussion without undue contrary pressure from Mr A. (6) The court has a wide inherent jurisdiction to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions, but on the facts no injunction against Mr A was necessary.
Official summary
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
10. A Local Authority v Mrs A and Mr A [2020] EWHC 1549 (Fam)Not on Bailii!) (Mr Justice Bodey, 24 June 2010). www.bailii.org/ew/cases/EWHC/Fam/2010/1549.html Mrs A was born in 1980, and has severe learning difficulties. Her IQ is 53. She married Mr A in July 2008. He has an IQ of 65, and is clearly of a controlling nature. She had already had two children – a daughter born in September 2004 and a son born in 2005 – who were removed at birth, made the subject of a care order, and later adopted. The local authority applied for a declaration that Mrs A lacks the capacity to decide whether to use contraception. The judge rejected the local authority’s submission that the capacity to decide on this issue includes awareness of what is actually involved in caring for and committing to a child, because it set the bar too high. At paragraph 64 he held as follows:
- “So in my judgment, the test for capacity should be so applied as to ascertain the woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment (“the proximate medical issues”) including:
- (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);
- (ii) the types available and how each is used;
- (iii) the advantages and disadvantages of each type;
- (iv) the possible side-effects of each and how they can be dealt with;
- (v) how easily each type can be changed; and
- (vi) the generally accepted effectiveness of each.
- I do not consider that questions should be asked as to the woman’s understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care.”
Citations
[2010] Fam Law 928, (2010) 13 CCL Rep 536, [2010] EWHC 1549 (Fam)B
A Local Authority v Mrs A (Test for Capacity as to Contraception) [2011] 1 FLR 26Not on Bailii!
A Local Authority v A and another (capacity: contraception) [2011] 3 All ER 706
Re A (Capacity: Refusal of Contraception)
Duplicate Bailii citation number: [2010] EWHC 1549 (COP)B
External links
Mondaq: 'The Court Of Protection – Recent Cases And Comments On Procedure (Part 1)', Alexis Hearnden, Victoria Butler - Cole and Alex Ruck Keene, 1/7/10 - Summary at paras 20-21
Jonathan Herring, 'Family: The right to choose', (2010) 160 NLJ 1066. The author criticises the judge's decision: for not referring to MCA 2005 s5 (whether restraint proportionate to risk); for finding that in this case there were no "risks to physical or mental health through pregnancy, childbirth, or the removal of a child"; for failing to take into account Mrs A's pre-incapacity views. The final paragraph states: "Bodey J was well aware of the sensitive nature of the case before him. The history of court-enforced sterilisation and the social engineering that sometimes went with it rightly requires judges to tread carefully in this area. His recognition that court orders, backed up with force, are not necessarily the best way to deal with delicate situations must be welcomed. Still, there is a real concern that here is a victim of domestic violence, whose husband is seeking to prevent her obtaining contraception, and the court is standing by. Bodey J made no mention of Mrs A's human rights under the European Convention on Human Rights. If his starting point had been a recognition of her rights to bodily integrity and protection from inhuman and degrading treatment, the end point might have been very different." New Law Journal - subscription required
Nasreen Pearce and Sue Jackson, 'Mental Capacity, Contraception and the Court Of Protection', [2010] Fam Law 1317 (1 December 2010). Another critical article.
Press Association, 'Forced contraception plan condemned' (19/8/11)