The local authority in this case applied to the Court of Protection for an interim declaration that Mrs A lacked capacity to decide to use contraception and that it would be in her best interests to do so. Mrs A has severe learning disabilities. Since 2002 she had been in receipt of support from the applicant local authority. She had previously given birth to two children, both of whom had been removed into the care of a local authority at their birth and later adopted. In November 2007 Mrs A moved into Mr A’s home, the local authority noting at the time that, as she had capacity to determine she wished to be in this relationship, they were not able to intervene despite concerns. Mr A was also learning disabled. In July 2008 they were married. The couple also disengaged from social services involvement. Mrs A continued to attend college and in October 2008 her tutor reported concerns to the local authority that Mr A was ‘controlling and de-skilling’ Mrs A and that she had reported to them that he had hitting and kicking her on a daily basis. Until June 2008 Mrs A had been using contraption, but ceased to do so because Mr A had stated they wished to have a baby. Evidence was put forward at the hearing that suggested Mrs A may have wished to have continued to use contraction without her husband’s knowledge and that she may not have wished to have a child.
On the issue of what the test for determining if a woman had capacity to decide to have contraceptive treatment, the Court considered the position of both the local authority, who sought to argue that the matter required an understanding of the wider social implications of pregnancy (namely having and having to rear a child), and the Official Solicitor, who believed that a test this wide would blur the boundaries between incapacity and best interest and catch most first time mothers, particularly those with unrealistic expectations of the job! Aware at first that the “administration of contraception is different from any other medical procedure, since no other medical procedure, or refusal of it, produces such significant social consequences as the potential creation of a child” the Judge was persuaded by the public policy implication that a wide interpretation of “reasonably foreseeable consequences” would prove to set the bar too high. Therefore he concluded that the test for capacity should be the woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment, including:
1) The reason for the contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);
2) The types available and how each is used;
3) The advantages and disadvantages of each type;
4) The possible side effects of each and how they can be dealt with;
5) How easily each type can be changed; and
6) The generally accepted effectiveness of each.
The Court considered in detail the evidence put before it by the expert witnesses; firstly, Ms O a Consultant Gynaecologist and obstetrician, and the second, Mr M a Consultant Gynaecologist. Ms O concluded after a short meeting with Mrs A that she did have capacity on the basis that she “understood all the elements which she (Ms O) regards as necessary for capacity regards contraception; namely to prognosis, diagnosis and understanding of the medical treatments involved, the common methods, how they are used and the side effects.” In contrast Mr M found that although “she had a basic understanding of the physiology of fertilisation and also of several contraceptive techniques…her understanding of the implications of achieving a pregnancy and rearing a child is minimal and as such demonstrates to me that she would not be capable of looking after and rearing a child in a safe and acceptable manner.” Finally the Court was assisted by a third expert, Dr K, a Consultant Psychiatrist in Learning Disability. He concluded that Mrs A did have an impairment of the mind or brain and that in regards to the second stage of the test for capacity set out within the MCA Mrs A’s “cognitive limitations and social impairment interferes significantly with her capacity to decide whether to have contraception, but also (and ‘in dynamic interaction’) so do emotional factors. Thus her capacity to weigh information…is further impeded by her ambivalence (mixed feelings ‘confusion’) about her husband and the pressure he seems to place on her to have a family.” Dr K formed the view that the her characteristics (both her learning disability and personality) and Mr A’s personal characteristics (including his hostility to support services) acerbates the pressure on her whilst at the same time giving her mixed messages as to what would be in her best interest, thereby incapacitating her further. Under cross examination Dr K explained that although he was satisfied that she understood the medical purpose of contraception, he believed that the issue of contraception required an social understanding as well because the consequences went beyond the mere medical matters. He explained that whilst she knew the risks, side effects and purpose of contraception she could not ‘use’ that knowledge because the “emotional factors are so strong that they prevent her from freely assessing the situation and weighing up the pros and cons.” The Judge concluded that although Mrs A had the required knowledge of the medical procedure she did not have the required capacity to form a decision due to the coercive pressure placed on her by Mr A.
Finally on the issue of whether it would be in her best interest to be required to have contraceptive treatment he made the point that there had been no evidence before him that Mrs A had suffered physically or mentally as a result of her previous pregnancies or the removal of those children and their subsequence adoption. He noted that the local authority had made clear that were Mrs A to become pregnant there would be a pre-birth conference to determine what action, if any, the local authority would seek. This suggested that there would be options including supporting the couple to raise the child or have the child raised within the extended family. He described the prospect of having Mrs A’s contraceptive treatment forcefully imposed as ‘horrendous’, however the a proposal that an order be made that Mrs A should have contraceptive treatment if she agreed was rejected as pointless because if she was in agreement no order was necessary. The Judge therefore took the view that an order as to the lawfulness of the imposed medical contraceptive treatment was not justified, preferring instead to rely on the assurances given by Mr A, during the course of the hearing, that he would allow Mrs A free contact with professionals so that she could be assisted to gain capacity on the issue of contraception.