A NHS Trust v DE

When deciding whether sterilisation is in the best interests of a person who lacks capacity, the court must apply the Mental Capacity Act 2005 and conduct a fact-specific balancing exercise. The decision must focus on the person’s welfare, although the effect on others may be relevant insofar as it affects that welfare. The person’s wishes and feelings are significant but their weight depends on the circumstances. A vasectomy should not be authorised merely because it is routine or clinically safe. The court must confront its permanent sterilising effect, consider less restrictive alternatives, and assess whether it would produce a real benefit, such as protecting an important relationship or restoring independence. A declaration permitting non-therapeutic sterilisation requires strong justification.

An NHS Foundation Trust applied to the Court of Protection for declarations that DE, a man with a lifelong learning disability, lacked capacity to consent to contraception and vasectomy, and that a vasectomy would be lawful and in his best interests. DE had fathered a child with his learning-disabled partner, PQ. He consistently expressed a wish not to have another child, but lacked capacity to weigh the competing arguments concerning contraception or vasectomy.

The evidence addressed the reliability of condoms, the medical risks of vasectomy, the effect of further pregnancy on DE and his family, and the restrictions that would otherwise remain on DE’s independence and relationship with PQ. The central issue was whether the permanent loss of fertility was justified as a best-interests decision.

1. Capacity. DE lacked capacity to litigate, to decide whether to consent to contraception, and to consent to a vasectomy. He nevertheless had capacity to consent to sexual relations, subject to continuing support and refresher work concerning sexual health.
2. Applicable approach. The decision was governed by sections 1 and 4 of the Mental Capacity Act 2005. The court had to consider all relevant circumstances, encourage DE’s participation, and take into account his wishes and feelings, beliefs, values and the views of those caring for him. The court had to reach its own objective decision. There was no hierarchy among the section 4 factors and no additional legal starting point derived from Article 8.
3. Human rights. Article 8 rights were engaged. The right to private life included personal autonomy and decisions whether to become or not become a genetic parent. Those competing aspects of private life had to be considered within the section 4 best-interests appraisal. Genetic parenthood alone did not establish a separate Article 8 family-life right.
4. Wishes and alternatives. DE’s settled wish not to have another child carried substantial weight because he had experienced fatherhood and understood the distress associated with the previous pregnancy. Condoms were an unreliable long-term alternative in the circumstances, carrying a substantial risk of pregnancy. The court did not treat the possible reversibility of vasectomy as materially reducing its permanent sterilising effect.
5. Balancing exercise. The court weighed the small medical risks and non-therapeutic nature of the procedure against DE’s settled wishes, the importance of his relationship with PQ, the risk that another pregnancy would cause serious psychological distress and end that relationship, and the restoration of independence that effective contraception would facilitate. The interests of DE’s parents were relevant only insofar as their distress affected DE’s welfare.
6. Outcome. It was overwhelmingly in DE’s best interests to undergo a vasectomy. The court made declarations that the procedure was lawful and in his best interests, and that reasonable and proportionate medically advised steps, including sedation or local or general anaesthesia, could be taken. The operation was to be performed by a consultant urological surgeon with anaesthesia administered by a consultant anaesthetist.