Still a stringent test

The ruling in NHS Trust v DE [2013] EWHC 2562 (Fam) has been heralded as groundbreaking by some in the media. It is certainly novel, as it is the first case where the court has approved the non-therapeutic sterilisation of a male, rather than a female. It is, however, no more than a restatement of the principles elucidated already in such cases, and is most certainly not a ruling which will open the floodgates to other, similar, claims.

As in all cases of non-therapeutic sterilisation, the court will only act where the treatment is not only in the best interests of the incapacitated person, but where there is, in effect, no practical and less intrusive contraceptive alternative.

Reflecting on the facts of this case (and others involving women), the courts have intervened and granted treatment where (and this list is to be read, separately, not as cumulative requirements):

(a) The individual has already engaged in sexual activity or is highly likely to do so and they have capacity to consent to sex;

(b) The individual has undergone a course of significant education and training to assist him to either gain capacity on the issue of contraception or to attempt to provide some tuition and education about such contraception which has not been successful;

(c) There is no realistic basis upon which any reliable contraception (of whatever nature) could be used by the person lacking capacity or their partner;

(d) The individual has already been pregnant, or fathered a child and this has had an adverse physical or psychological impact upon them;

(e) They are suffering psychological or emotional harm from the absence of treatment i.e. because they are unable to enter into sexual activity or are socially isolated or supervised to a high degree because of the risk of further pregnancy or fatherhood;

(f) As far as can be ascertained, their wishes and feelings are not inconsistent with such a treatment;

(g) The side effects or impact of the sterilisation both physically and mentally do not outweigh the benefits of such treatment;

(h) The treatment could lead to an improvement in the quality of someone's life (and possibly, as a minor factor, could lead to an improvement in the relations with others or that those others have with the incapacitated person).

The courts have refused to intervene and will not grant such treatment where:

(a) There is no evidence that the individual has engaged in sexual activity or is highly likely to do so, or that such sexual activity is unlikely in the future, even if it occurred in the past;

(b) Alternative forms of contraception have not been tried;

(c) No work has been done by specialist learning disability staff to provide advice, assistance, training and education to assist the person to gain capacity to consent to contraception themselves;

(d) The person lacks capacity to consent to sex, and so any sexual activity with others would be a criminal offence;

(e) There is no evidence of psychological or emotional harm by not carrying out the treatment;

(f) They have stated that they do not wish to undergo the treatment (insofar as they are able);

(g) The side effects of the treatment may cause significant psychological or physical consequences;

(h) There is no evidence that it would significantly improve the quality of someone's life.

The facts in the DE case were unusual and the reasons for granting the treatment exceptionally strong but it is clear from the judge's careful and full comments that while this was a landmark ruling, it in no way changes the stringent test which must be met before any similar decision could be taken in the future.