Mental Health - July 2010
Limited conception
When assessing a patient’s capacity to make decisions
about contraception, there are some issues that must be borne in
mind. But not as many as you might expect…
Mrs A hasn’t taken her contraceptive
medication for some months now, and she gives conflicting accounts
of her attitude to pregnancy and motherhood, and of what their
implications might be. A complicating factor is her capacity.
Mrs A’s case came before the High Court
recently (A Local Authority v Mrs A and Mr A, 4
May 2010). At one time, the local authority had thought it might be
necessary to force her to take her medication, possibly with the
assistance of the police.
The first task for the court was to decide how
to assess Mrs A’s capacity. She has a very low IQ, and for the
purposes of this case it was accepted that she has an impairment of
the mind that might bring her within the Mental Capacity Act. The
next question, therefore, was whether she can understand, retain,
use and weigh relevant information, and also, what that information
might be.
According to the Act, it includes “the
reasonably foreseeable consequences of deciding one way or another”
– here, whether to use contraception. Two conflicting views were
before the court: it was said for Mrs A that she would be capable
if she had a sufficient grasp merely of the medical features of the
decision; while the local authority argued that she would be
incapable – and so might be treated in her best interests, and
without her consent - unless she understood the social consequences
as well. (These might include possible conception and birth, and
the parenting of a child.)
Ultimately, the judge adopted the more limited
test. He said that as far as contraception is concerned, it is only
necessary for someone to understand the ‘proximate medical issues’
in order to be capable. Requiring her also to pass the ‘social
consequences’ test would “set the bar too high [and] risk a move
away from personal autonomy in the direction of social
engineering”. It would impose too great a requirement of a test
that “has to be applied daily in surgeries and family planning
clinics during appointments lasting perhaps less than half an
hour”.
The judge listed the medical issues he had in
mind:
- The reason for contraception and what it does
(including the likelihood of pregnancy if it is not in use during
sexual intercourse)
- The types of contraception available and how
each is used
- The advantages and disadvantages of each
type
- The possible side-effects of each and how
they can be dealt with
- How easily each type of contraception can be
changed
- The generally accepted effectiveness of
each
When this test was applied to Mrs A, it
produced a stark result. There was a wealth of evidence that she
had been overpowered, and even abused, by her husband, and the
judge found that this was sufficient to render her unable to use or
weigh information about contraception. She would therefore be
incapable and, by virtue of the Mental Capacity Act, professionals
and the court would be able to make decisions in her best
interests.
That, however, was the high water-mark of the
court’s involvement, for the judge seemed to shy away from the
logical implications of his findings. He ruled that compulsion was
out of the question, not least because both Mr and Mrs A had stated
vehemently that they would resist it. Because of this
‘drawbridge-mentality’, the judge said, “it is difficult if not
impossible to envisage any acceptable way forward on these
particular facts, other than by an attempt to achieve a
capacitated decision from Mrs A, through ‘ability-appropriate’
help and discussion without undue contrary pressure from Mr A”
(emphasis added). With regard to Mr A, the judge accepted that
there was the power to issue an injunction to prevent him
pressurising his wife. The judge declined to use that power,
however, because Mr A now said he would allow Mrs A to have free
contact with professionals.
It is interesting that the judge accepted that
his injunction-making power derived from the ‘inherent
jurisdiction’ of the High Court, and that that jurisdiction
continues to exist, at least in respect of ‘vulnerable’ people,
despite the coming of the Mental Capacity Act. (The judge also
accepted that incapable people can be vulnerable too.) More
surprising, however, was his attitude to Mrs A’s state-of-mind.
The judge seemed to will the end – that Mrs A
should take contraceptive medication – but not the means. It is
easy to see why, for using the apparatus of the state to prevent a
woman becoming pregnant is, to say the least, a significant step.
Yet it seems odd that, having concluded that Mrs A lacked capacity
with regard to contraception, the judge approved a solution that
relies entirely upon her ‘capacitated decision’. If she does indeed
become capacitated, surely no ‘best interests’ decision may be made
or, if it has been made, may be enforced. And presumably, in
that happy state, Mrs A will be able to decide not just to accept
medication, but also to decline it. And if, as the judge clearly
believes, there is indeed a chance that Mrs A will acquire
capacity, to rule now that she lacks it is surely to act
prematurely, and even, possibly, to contradict the Mental Capacity
Act.
David Hewitt,
Partner
Weightmans LLP