February 16, 2011 3 Comments
The mother of a young woman with learning difficulties who is pregnant with her second child broke down in tears as she pleaded with a high court judge to allow her daughter to be forcibly sterilised for her own protection.
The mother, known as Mrs P, told the judge that while she and her family supported her daughter, 21, and helped bring up her children, they could not make a commitment to any future babies.
It’s rarely a good idea to comment from a distance on individual cases and this one seems genuinely troubling. It turns on the woman’s right to make decisions about her relationships and desire to be a parent, when there is a question mark over her ability to understand the consequences of those decisions. It’s being heard by the Court of Protection, set up to adjudicate in complex decisions like this when someone is deemed to lack the capacity to make the decision for themselves.
I was suprised to read that the court hears between 20 and 40 cases involving “serious medical treatment” every year. It would be interesting to know more about those cases: has any research been done into the court’s impact on decision making in this area?
Another case has been attracting controversy recently in the UK and international press, involving a young man with a low IQ who was banned by the court from having sex, due to its ruling that he didn’t understand the health and emotional consequences. In this case, there was no one else’s well being to consider: the man was in a sexual relationship with another man he lived with in supported accommodation and there do not appear to have been concerns about that other individual. The court’s ruling was that the man did not currently have the capacity to consent to sex, but that, given his expressed desire to have sexual relationships, his support workers should educate him about sex and relationships, in order that he might gain the capacity.
In some ways, this is a fairly reasonable judgement. Importantly, it recognises that mental capacity is not fixed: the man doesn’t understand the issue now, so should be supported to gain capacity to understand it. There is an implicit criticism in the judgement of support services concerned enough to take a case to court, but who were not capable of working out that the individual was in need of support with sex and relationships. There was some silliness in the proceedings: the individual’s lack of understanding of contraception and where babies come from were cited as reasons for concern, which don’t seem that relevant to his relationship with another man.
Most of all though, I can’t help being struck by this contrast: thousands of pounds was spent and a high court involved in a man’s sex life, because of his lack of understanding of the health and well being issues. If we applied those standards to everyone else, how many thousands of poorly informed teenagers, or for that matter, people who make decisions about sex whilst drunk, would find themselves and their mental capacity up before a court?