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England and Wales: Court of Protection Grants Vasectomy for Man with Learning Disabilities

(Aug. 21, 2013) In an historic judgment, the Court of Protection for England and Wales has ruled that it is in the “best interests” of a 37-year old man with an IQ of 40 – classified as having a moderate learning difficulty – to be sterilized. In this case, the man, who has the mental capacity of a six- to nine-year old, fathered a child with his long-term girlfriend, who also has a learning disability, in 2010. The man expressed on several occasions that he did not wish to have any more children, and the man’s relationship with his girlfriend suffered because, due to the risk of pregnancy, the couple had only been allowed to see each other for scheduled, supervised visits. Attempts were made to educate the man about different forms of contraceptives, but those attempts failed. (Nadia-Elysse Harris, Court OKs Vasectomy for Mentally Disabled Man: Judge Rules Sterilization Is in ‘Best Interest’ of Man Who Can’t Consent, MEDICAL DAILY (Aug, 16, 2013).)

The Court of Protection determined that the man lacked the capacity to make an informed decision and consent to the procedure, but was clear in his wish to not have more children, and therefore it was in his best interests that the Court provide the necessary consent for the vasectomy. (Id.) The man’s desire not to have any more children was cited as the most decisive factor in the case, but the man’s ability to resume his relationship with his long-term girlfriend was also considered. The solicitor for the man stressed that this particular case is “not covered by the shadow of eugenics,” and, according to the judge, the decision aims to restore the man’s life and independence. (Sarah Morrison, Legal First as Court Gives Go-Ahead for Sterilisation of Disabled Man, THE INDEPENDENT (London) (Aug. 16, 2013).)

The Court of Protection has faced considerable controversy since it was established in 2005 by the Mental Capacity Act 2005. Initially, there were concerns over the secrecy shrouding the judgments passed by the Court. More recently, some cases have been reported, with the parties’ names anonymized to protect their privacy. (Court of Protection Openness Call by Justice Secretary, BBC NEWS (May 1, 2013); Lucy Series, ‘Secrecy’ in the Court of Protection, The Bureau of Investigative Journalism website (Oct. 16, 2012).)

Other controversial cases and decisions that have been made public include the determination of whether a pregnant young woman with learning difficulties should have an abortion, deciding whether a young woman with severe learning difficulties should be sterilized due to multiple pregnancies, and prohibitions on intercourse for a man with moderate learning difficulties. (D Borough Council v AB, [2010] EWHC 101 (COP), British and Irish Legal Information Institute (BAILII) website; Re SB, [2013] EWHC 1417 (COP), BAILII website; Jerome Taylor, Woman with Limited Mental Capacity Can Have Her Baby, THE INDEPENDENT (Jan. 10, 2013); & JUDICIARY OF ENGLAND AND WALES, COURT OF PROTECTION REPORT 2010, Judiciary of England and Wales website.)

The Court of Protection has the difficult responsibility of making decisions regarding ethical and moral determinations for people who lack the capacity to do so. Some insight into how these decisions are made by the Court has been aptly summed up by a judge who was reported as stating:

Anyone who has sat in the family jurisdiction as long as I have spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships …. The purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do.” (Taylor, supra.)