This case will be of interest to commissioners and providers who care for vulnerable service users who may not have the capacity to consent to sexual relations, contact, or contraception.

 

Case

 

Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10

Relevant Topics

  • Capacity
  • Best interests
  • Sexual relations
  • Sexual relations and supervision
  • Contraception
  • Covert treatment

Practical Impact

  • A person can have capacity to consent to sexual relations but not have capacity to consent to contact. In these circumstances, relationships may need support, management, and if necessary, control by the court;
  • Covert treatment cannot continue indefinitely and should only be countenanced in exceptional circumstances;
  • Covert contraception should be kept under review by professionals at all times;
  • This case discusses the pros and cons of covert contraception and sexual relationships and supervision in relation to the particular circumstances of the case.

Summary

 

 

 

 

P’s capacity other than sexual relations

Dr D, Consultant Psychiatrist found that although P was aware of various types of contraception and how they work, she lacked the capacity to consent to contraceptive treatment because of her inability to understand the relative effectiveness of each form of contraception, and her inability to weigh up the positives and negatives of the different forms of contraception in relation to her own circumstances.

The judge found that P lacked capacity to conduct the proceedings, consent to contraceptive treatment, and to make decisions about personal welfare, including residence, care, and contact with other people.

P’s capacity to consent to sexual relations

Following further evidence from Dr D, the judge found that P had achieved a sufficient understanding of the mechanics of sexual intercourse, the fact it can lead to pregnancy, and the risks of transmitted diseases. He was therefore able to make a declaration that she had the capacity to consent to sexual relations.

However, he did note, that where a person has the capacity to consent to sexual relations but lacks the capacity to make decisions as to her contact with other people, there may be circumstances in which her relationships need to be supported, managed, and, if necessary, controlled by the court.

Best interests: contraception

The judge reached the conclusion that it was in P’s best interests for the IUD to remain in place until the end of its normal ten-year span. At that point further careful consideration would have to be given as to what contraceptive treatment, if any, should then be provided. The reasons for this were:

  • The emotional and psychological harm to P should a further child to her be removed at birth;
  • P had consistently said that she does not want to have a baby;
  • M (family member), was strongly of the view that the IUD remain in place given P’s extreme vulnerability;
  • Although P was subject to constant supervision, she may elude the supervisors and put herself at risk of sexual exploitation once again;
  • The IUD is considered to be the most reliable form of contraception in the circumstances, with little or no need for further medical treatment until it is removed at the expiry of its lifespan;
  • Removal of the IUD was not clinically necessary at this stage and would involve a procedure which is likely by itself to be emotionally and psychologically harmful to P.

Best interests: covert treatment

The judge found that the original decision to treat covertly was taken after detailed discussion and a court process which was thorough, careful, and compliant with Article 8. It was justified by the great concerns about P’s sexual exploitation. He considered that as it was plainly in her best interests for the IUD to remain fitted, he reached the conclusion that she should not be told about the presence of the IUD at this stage.

He did, however, state that this could not continue indefinitely, and that covert treatment should only be countenanced in exceptional circumstances. He stated that when the time comes for the IUD to be renewed or replaced, every effort will have to be made to include P in the decision-making process about future contraception. He stated that it is imperative that professionals working with P keep this issue under review at all times and start planning now for ways in which further decisions about contraception can be taken in way that includes P and respects her personal autonomy and human rights.

Best interests: sexual relationships and supervision

It was the view of the local authority and the care agency that a slight relaxation in supervision would be in P’s best interests. It was stated that it was hard to see at this stage how far the relaxation of supervision could safely go. The judge therefore made an interim order granting permission for the slight relaxation proposed, but on this basis that continue for three months before there is a further review. The order was to further provide that the parties may agree a further relaxation of the supervision thereafter, and may also agree for P to have unchaperoned time with her boyfriend. In the absence of agreement on those issues, there would be no further relaxation of supervision, nor any unchaperoned contact between P and her boyfriend until further order.

At this stage, the judge did not consider it appropriate to include in the order a provision that it is lawful for the local authority to facilitate a sexual relationship between P and potential partner. The Judge acknowledged that this was a deep and sharp area of disagreement between the professionals and the family and considered that this was a good reason for the court to remain as arbiter.

Background

P was a young woman with learning disabilities. Concerns arose that, by reason of her learning difficulties, she was vulnerable to sexual exploitation, pregnancy and sexually transmitted diseases. Several years ago, an application was made for P to be sterilised. Instead, P was covertly fitted with a long-acting contraceptive (IUD) and was not subsequently informed of the procedure. Sexual health training for P was also provided.

In 2016, an application was made by the local authority to restore the proceedings to re-visit the issues. It was the view of a social worker that the IUD should remain in place, and that P continue to not be informed of its existence, but that the level of care and supervision be reduced, due to the reduced risk with the IUD fitted.

The principle issues for the judge at this hearing were:

  1. Does P have the capacity to consent to sexual relations?
  2. If she does, what steps should be authorised to facilitate the relationship between P and her boyfriend, or between P and any other person with whom she wished to have a sexual relationship?
  3. Is the proposed relaxation in supervision in her best interests?

It was also thought appropriate for the court to consider wider issues, including whether the contraceptive treatment should continue to be covert,

Key Findings

  • A person can have capacity to consent to sexual relations but not have capacity to consent to contact;
  • In these circumstances, relationships may need support, management, and if necessary, control by the court;
  • It was in P’s best interests for an IUD to remain in place for the full ten-year span;
  • It remained in P’s best interests to not inform her about the presence of the IUD;
  • Covert treatment cannot continue indefinitely and should only be countenanced in exceptional circumstances;
  • It was in P’s best interests for a further relaxation in the supervision regime, with further relaxation allowed only if all parties were in agreement.