The Protected Party is 21 and suffers from a severe learning disability. She has an ‘understanding‘ age of about 3-5 years. She conceived a child in late 2015, by means which in all probability amounted to rape. The perpetrator of the sexual assault remains unknown by neither the family or the Protected Party. In 2016, she gave birth to a child that was placed in foster care.
At 28 weeks pregnant, the Health Authority sought the authority of the Court of Protection to arrange the delivery of the baby by caesarean section; Newton J made the relevant order in August 2016, and the baby was born on the following day.
The father of the baby is unknown. The circumstances of the conception were undetermined although it is believed that the father may be a friend of one of the Protected Party’s brothers. There is professional agreement that the Protected Party did not have the capacity to consent to sexual intercourse.
The Protected Party was confused and distressed at the pregnancy and confinement, and immensely distressed when her baby was removed from her care, pursuant to emergency orders obtained under Part IV Children Act 1989. Professionals speak of an extreme reaction to these events: a “significant physical and psychological trauma“.
An Application was made to the Court of Protection in 2016 for best interests determinations relevant to ante-natal care, and the delivery of the baby. The issues before the Court now are:
- i) Whether the Protected Party has the capacity to consent to sexual relations:
- ii) Whether she has the capacity to agree to the administration of non-therapeutic contraception;
iii) Whether it is in the Protected Party’s best interests that she receives non-therapeutic contraception.
All parties shared a strong common objective to protect the Protected Party from further harm, and specifically from sexual exploitation and pregnancy. However, they differ as to the means by which this can, or should, be achieved.
The Applicant, The Hospital Trust (“the Health Authority“), supported by the community learning disabilities team of the relevant Local Authority (“the Local Authority”) contend that it is in the Protected Party’s best interests that she should be provided with contraception as part of a wider safeguarding package, that should be trialled for a number of months.
Any medical intervention she found traumatising and she was scared. Though physically she healed well after the baby, the removal of the baby had a devastating effect on her emotional and psychological welfare. She could not understand where the baby was and was constantly asking for her baby. She was physically lashing out at her mother, self-harming, not sleeping, not eating, throwing herself on the floor and the community care officer took her to the GP and she got anti-depressants.
Following the delivery of the baby, professional attention swiftly turned to the formulation of a plan to prevent a recurrence of the pregnancy. Attentions turned to educating the Protected Party about sexual health. The Official Solicitor acting on the Protected Party’s behalf indicated that contraception was not necessary, and that the safeguarding package is sufficient to protect her.
The safeguarding plan appears to have been broadly successful, however, there have been a number of lapses of the safeguarding plan over the last 12 months. These lapses are admitted by the parents. They included leaving the Protected Party alone with her male siblings, on a number of occasions, which was against the safeguarding policy that had been decided upon.
There is disagreement between the advocates as to the correct approach to the best interests of the Protected Party and a number of questions were raised:
i) Is it in the Protected Party’s best interests that she receives contraceptive protection?
ii) If so, what form of contraception is in her best interests, as the less restrictive option?
iii) If contraception is in her best interests, is it in her interests that such contraception is first trialled?
iv) Would the benefits of the contraceptive outweigh the negatives with regards to the best interests of the Protected Party?
It was decided that the Health and Local Authorities say that the safeguarding plan has been robust, but that contraception offers an important additional level of safeguard in the event that the plan fails.
The authorities argue that contraception will materially reduce the risk of pregnancy yet further. The social worker summarised the position in her oral evidence thus:
“Even though I believe that the plan is robust and the family are working with us, breaches are still happening, and the last two breaches, the parents did not even know of the Protected Party’s whereabouts.”
They continued, “this will give us an extra layer of protection, in the event that anything goes wrong, or not within the family’s control. However, it was agreed by all that the Protected Party would need assistance in administering the contraception and charts would be created monitoring the menstrual cycle of the Protected Party.”
In considering all the issues raised, the views of the Protected Party were taken into consideration. The Protected Party demonstrated a “clear ability to learn“, and had an understanding of certain forms of contraception, is able to identify these and is “able to demonstrate the part of the body where each contraceptive is used.” The following were considered:
i) She does not wish to become pregnant again, or to have further children;
ii) She wishes to avoid surgery;
iii) She does not want intrauterine contraception;
iv) She would favour the patch (the view formed by the community matron.)
Following a number of reviews, it was concluded that the Protected Party had limited understanding of the “patch” and the link to pregnancy.
By noting that the Protected Party is not sexually active, had no boyfriend, and that the proposed administration of contraception is non-therapeutic. It was judged against making a decision that is unfavourable and is one that respects the Protected Party’s Article 8 rights, and maintains clear focus on what is best for the Protected Party’s, striking the balance between protection and empowerment.
“I return to the point I made at the outset of this judgment: the combined objective of the parties to ensure that the Protected Party is protected from further harm. The Local Authority considers that the safeguarding plan is “as robust as it can be”. Although The Protected Party’s mother has deposed in her signed statement to the fact that her daughter “… is never alone, she comes everywhere with me”, this has been shown – even very recently – not to be true.
The fact that the protection plan would remain unaltered whether contraception is administered or not does not mean, that there are not real advantages to the Protected Party receiving contraception. The safeguarding plan is designed to reduce the risk of sexual exploitation particularly outside of the home; contraception is proposed to reduce the risk of pregnancy in the event that the plan fails. If this additional safeguard can be introduced without undue side effects, and is a safeguard which the Protected Party is not unwilling to accept, then the best interests balance tilts in favour of its use.”
The prospect of any medical intervention, even the simple task of being weighed and measured in a clinic, and of blood pressure being taken, has left the Protected Party “petrified” in the recent past. It is vital for the court to reduce the need for such medical interventions.
It was decided that it may be that the side-effects of the patch are uncomfortable to the Protected Party in that regard and that the disbenefits of the contraceptive patch outweigh the benefits. This will only be known after a trial of the patch. At the conclusion of the trial period, or at an earlier time, should it become clear that the contraceptive patch is not appropriate, a best interests’ meeting will be held, at which a decision will be taken as to whether it is right to continue with the patch or whether an alternative method of contraception should be attempted, or whether the likely disbenefits of continuation or of any other form of contraception outweigh the benefits.
It was declared that it was in the Protected Party’s best interests that a contraceptive patch be administered for a trial period of up to six months. I shall list the case for review to coincide with the end of the trial, when further decisions can be taken.
“I wish to make clear that this decision is about the Protected Party, and her best interests; the decision is taken in the context of her unique situation. I wholly reject the submission on behalf of the Official Solicitor that by declaring contraception in the Protected Party’s best interests I would in one way or another be setting a precedent for all incapacitous and vulnerable women.”
If you have any queries, please do not hesitate to contact Georgia Clarke (firstname.lastname@example.org) or the team at COPCosts@clarionsolicitors.com.