Sex, contraception and the courts
Re P (Sexual Relations and Contraception)! (Baker J)
Best interests – contract – contraception – mental capacity – sexual relations
This case concerned a young woman with learning disabilities, in respect of whom Court of Protection proceedings had been ongoing for a considerable period of time. In 2012, the court determined that P lacked capacity to make decisions about contraception and consented on her behalf to the insertion of an IUD under general anaesthetic. P was never told about the IUD.
In 2016, the local authority applied to restore the proceedings to revisit the question of P's capacity to engage in sexual relations and to make decisions about contraception, and to consider her best interests and to authorise her deprivation of liberty at her supported living placement.
The court was asked to decide (1) does P has capacity to consent to sexual relations? (2) If she does, what steps should be authorised to facilitate the relationship between P and her boyfriend, or between P and any other person with whom she wished to have a sexual relationship? (3) is the proposed relaxation in supervision in her best interests? In addition, the court reviewed wider issues concerning her treatment, including the question whether it should continue to be covert or whether P should be informed about it.
The court accepted psychiatric evidence that P lacked capacity to make decisions about contraception, residence, care and contact. She was vulnerable to harm from others and could not identify how she would judge whether someone she met posed a risk to her, including with regard to a sexual relationship.
On the topic of capacity to consent to sexual relations, Baker J applied the current caselaw and found that P had capacity, but noted that
many people would agree with the strong views expressed by [P's mother] in a statement filed for the hearing before me in which [she] said inter alia:
"if P lacks capacity to make decisions regarding contact (in particular of people who may cause a risk to her) how on earth can she have capacity in respect of sexual relations? A decision just to have sex with a person surely needs to include a decision based on STDs and other risks involved. Such a decision in my view is narrow-minded and does not include any thought of consequences for care, accommodation, family etc."
Baker J described the situation as a 'paradigm case' in which P's “relationships need to be supported, managed and, if necessary, controlled by the court” in view of her lack of capacity to make decisions about contact but her capacity to consent to sexual relations.
Baker J noted that the IUD had been fitted without any opportunity for P to express her views and that P's care manager said that if P was asked now, it was her view that P would say she did not want the IUD. Nevertheless, the court concluded that it was in P's best interests for the IUD to remain in place for the rest of its natural lifespan, relying on matters including the following:
- P would suffer emotional and psychological harm if she became pregnant again, particularly if her child was (as had happened previously on two occasions) removed from her care at birth;
- P had said consistently she did not want to have a baby at this stage;
- P's mother considered the IUD should remain in place, in light of her concerns about P's vulnerability to abuse;
- Even though P was subject to 24 hour supervision, there was a very small risk that she would put herself at risk of exploitation;
- An IUD remained the most reliable form of contraception for P and there was no medical reason for it to be removed.
Baker J further held that it was not in P's best interests to tell her of the existence of the IUD, accepting that the impact on P's relationships with her family and care team would be put at risk if she lost her trust in them. The judge stated however that this position could not remain forever: "although I approve the plan to retain the IUD, and not to tell P about it at this stage, I regard it as imperative that professionals working with P keep this issue under review at all times and start planning now for ways in which further decisions about contraception can be taken in a way that includes P and respects her personal autonomy and human rights."
Finally, Baker J authorised a trial period of reduction in the supervision afforded to P, in light of her wish to have more freedom. The judge recognised that further problems were likely to arise, as P's mother did not support the relaxation in supervision and remained concerned about sexual exploitation, whereas the local authority were taking steps to see whether P's relationship with her boyfriend could be supported. Having approved the reduction in supervision, however, Baker J said that “I do not consider it appropriate to include in the order a provision that it is lawful for the local authority to facilitate a sexual relationship between P and a potential partner in accordance with the draft care plan.” This was not because (for instance) of the possible risk of complicity in offences under the Sexual Offences Act 2003 on the part of the local authority, but simply because he wanted to take a staged approach in light of the history of sexual exploitation.
This case is, as the judge observed, a paradigm example of the difficulties that arise when a person is judged to have capacity to consent to sexual relations but not to other, closely related, matters, such as contraception and contact. The net result in this case was that P was permitted to have some time free from 1:1 supervision, but despite her capacity to consent to sexual relations, the local authority could not 'facilitate' a sexual relationship with her partner. The Court of Protection would remain involved, to monitor and make decisions about P's relationship - despite the low threshold test for capacity to consent to sexual relations having been set at that level at least in part to avoid state interference in people's private lives.
Although Baker J did not say so expressly, the judgment suggests that the approval of covert insertion of an IUD might not have been the appropriate way forward back in 2012. Further, and whilst the judgment in the Y case was still anticipated, Baker J noted that, whatever the Supreme Court might say about bringing applications concerning serious medical treatment to court, "given the serious infringement of rights involved in the covert insertion of a contraceptive device, it is in my judgement highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of best interests, with P having the benefit of legal representation and independent expert advice."