The Mental Health Trust & Ors v DD & Anor [2014] EWCOP 13

This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No 12505653[2014] EWCOP 13
COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2014
Before
MR JUSTICE COBB
Between
The Mental Health TrustApplicantsThe Acute TrustApplicant&ApplicantThe CouncilApplicantDDRespondentsBCRespondent(Number 2)
John McKendrick (instructed by Bevan Brittan LLP) for ApplicantsMichael Horne (instructed by the Official Solicitor) for First Respondent, DDThe Second Respondent, BC, was neither present nor representedHearing Hearing dates: 11 July 2014
JudgmentThe Honourable Mr Justice Cobb :Table of contents:1 Introduction 1-3 2 The hearing 4-6 3 Summary of decision 7 4 Recent events 8 5 Judgment [2014] EWCOP 11 9 Capacity 6 Interim declaration as to capacity to make decisions in relation to contraception 10-23 Best interests 7 The Applicants’ plan in relation to•Education and capacity assessment•Short-term contraception 24-28 29 8 DD’s wishes and feelings 30-33 9 Is it in DD’s best interests for DD to receive education and then a full assessment of her capacity to make decisions in relation to contraception?34-36 10 Is it in DD’s best interests that the Applicants be authorised to take such necessary and proportionate steps to give effect to the best interests declaration above, to include forced entry and necessary restraint?37-41 11 Is it in DD’s best interests that she should be administered short-term contraception at this stage?42-44 12 If so, what form of contraception?45-47 13 Conclusion 48-50Introduction
[1]By judgment dated 4 July 2014 (see The Mental Health Trust, The Acute Trust and the Council v DD (By the Official Solicitor) & BC [2014] EWCOP 11) I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section.[2]Further to a scheduled hearing which took place in the following week, I now consider: i) Whether it is in DD’s best interests that the Applicants should be authorised: a) to provide DD with education in relation to contraception, and then b) to assess her capacity to make decisions in relation to contraception; This falls for consideration in light of my earlier finding [2014] EWCOP 11 (§87) that there is reason to believe that DD lacks the capacity to consent to an assessment of her capacity to make decisions in relation to contraception; ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment; iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005: (‘MCA 2005’)) that DD currently lacks the capacity to make decisions in relation to contraception; iv) If there is reason to believe that she currently lacks capacity (in relation to (iii) above), whether it is in DD’s best interests that a short-term contraception be administered by way of injection (and authorise the Applicants’ staff to do so).[3]I remain acutely aware of the extraordinary interference with DD’s private and family life, her freedoms and her liberty which flow from the steps which I earlier authorised. In determining this application, I recognise that additional significant interference into her life is contemplated; this application, as the last, engages vividly DD’s rights under article 3, article 5, and article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The hearing

[4]Neither DD nor BC attended this hearing. I am satisfied that the Applicants have taken appropriate steps to advise them of the date, time and location of the hearing, having visited them at their home, and having hand-delivered a letter containing the relevant information. DD and BC have adequate literacy skills to read and understand the correspondence; they have however made clearly known their attitude to professional intervention generally. It is, regrettably of little surprise that they do not engage with this court process.[5]For the purposes of determining the issues outlined in §2 above, the Applicants have filed further written evidence following my earlier judgment. At this hearing, I heard oral evidence again from Mr. A (Consultant Gynaecologist and Obstetrician), and Dr. F (Community Consultant Psychiatrist for adults with learning disabilities); at this hearing, I heard also from Nurse I, (a Nurse Consultant with the Contraceptive Service). The Official Solicitor had instructed Dr. Sam Rowlands, Clinical Lead in Community Sexual and Reproductive Health at Dorset Healthcare University NHS Foundation Trust, a specialist in sexual and reproductive health. Although he attended at court for the hearing, his report was not contentious and he was not called to give evidence. I have read his report with care.[6]The hearing has once again been conducted in public pursuant to rule 92(1)(a) of the Court of Protection Rules 2007. The need for a decision is pressingly urgent.

Summary of decision

[7]For the reasons more fully set out below, I have concluded that: i) It is in DD’s best interests that I should authorise the Applicants: a) to provide DD with education on contraception, and then b) to assess her capacity to make decisions in relation to contraception; ii) It is in DD’s best interests that I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include, if necessary, forced entry into her home in order to convey her to a community health service resource, and if necessary use restraint. iii) There is indeed reason to believe (per section 48 Mental Capacity Act 2005) that DD currently lacks the capacity to make decisions in relation to contraception; iv) It is in DD’s best interests to be administered a Depo-Provera contraceptive injection at the time of the caesarean section. I authorise the Applicants’ staff to do so.

Recent events

[8]Before discussing the evidence, and the reasons for my decision, it is appropriate that I should record the following events which have occurred in the days since my last judgment: i) On 7 July, Mr D (social worker, and Approved Mental Health Professional) visited DD’s and BC’s home; there was no answer at the door, save that BC called out that he and DD were fine; both DD and BC shouted through the closed door to the social worker to “go away”; ii) On 8 July, DD and BC were seen briefly by Nurse I as they emerged from their home; Nurse I had been delivering leaflets about family planning and contraception. BC and DD retreated and slammed the door shut. BC was seen still to be holding the envelope containing the leaflets, and took it back inside with him. iii) Later the same day DD and BC attended at the offices of the Applicants; they were returning a letter delivered to them. They were seen to be angry: BC’s parting words were “she’s not pregnant” iv) Mr D visited again on 8 July; there was no response; he left a letter detailing the outcome of the last court hearing, and giving details of this. This letter was returned to the Applicants marked on the envelope “Please Go Away”, and inside the letter, their names had been erased in pen, and the word “moved” was scrawled above this.

Judgment: [2014] EWCOP 11

[9]I covered important evidential and legal ground in my earlier judgment; some of it is directly relevant to the issues which fall for consideration now. It would be repetitious to set it out again here. For the avoidance of doubt, I specifically take into account, in reaching my decisions at this hearing, my views on the evidence, and the distillation of the law, from the earlier judgment as follows: i) Summary of the relevant background, and history of DD’s current pregnancy and ante-natal care (§20-44); ii) Expert opinion as to DD’s mental state and functioning (§45-54); iii) General principles as to capacity (§55-63); iv) DD’s capacity to decide on mode of delivery of baby (as this is linked, in my judgment, to her capacity to decide on contraception) (§69-79); v) Capacity to decide on assessment to test capacity to make decision on contraception (§80-84); vi) Conclusions on capacity (§85-89); vii) Best interests: general comment on the law (§90); viii) DD’s wishes and feelings: the Aintree case (§121); ix) Use of reasonable force and admission to hospital (§129-134); x) Assessment to establish whether DD can decide on issues of contraception (§145-160). Capacity Interim declaration as to capacity to make decisions in relation to contraception

Capacity

[10]As I indicated at §80-84 [2014] EWCOP 11, there has been no specific current assessment of DD’s capacity to make decisions in relation to contraception. Accordingly, I am asked to determine, for the purposes of making an interim order, whether the evidence supports a conclusion that there is reason to believe (section 48 MCA 2005) that DD currently lacks capacity to make decisions in relation to contraception.[11]It is important to set this question in context. DD’s medical notes (more fully available since the last hearing, and discussed by both Dr. F and Dr. Rowlands) reveal that during her childhood and adult life she has periodically received advice about contraception, and has been prescribed, and has used, different forms of contraception. The evidence appears to show that the contraceptive pill was first prescribed for DD when she was 12 years old. Her first Depo-Provera injection was in March 2000 but she was unwilling to use it again after 2 injections because of heavy bleeding, and in September 2000 she requested to go back on the oral contraceptive pill. There is a note of a discussion between DD and her GP in March 2002 at which DD requested contraception – the GP discussed a range of contraceptives including the pill, coil and implants, and DD agreed to an implant. The GP inserted the implant later that month although it was in place only briefly as, in fact at that time it transpired, DD was pregnant with Child 1; accordingly, the implant was removed. Following Child 1’s birth, a further implant was inserted. In September 2003, the family planning clinic prescribed the oral contraceptive pill in addition to the existing implant. In December 2003, DD attended her GP requesting sterilisation (this was not the first time she had made this request). A specific referral for sterilisation was made in January 2005. When seen in hospital two months later, that request was refused as her motives were felt to be inconsistent and therefore unreliable. In October 2005, DD attended the family planning clinic and underwent the re-insertion of a contraceptive implant. This was removed in 2008, and at that time she indicated that she and her partner would use condoms. Later in 2008 she sought advice on becoming pregnant.[12]While accepting that not all notes are available to me, it is nonetheless apparent that DD’s capacity to take decisions in relation to contraception does not appear to have been questioned in these numerous interactions with medical professionals over a number of years. She appears (on the face of the documents) to have been able to understand and weigh information relevant to various contraceptive methods, and communicate her complaints about the various side effects of the different forms of contraception. She had requested sterilisation when in a relationship with her first partner, and was able to make a choice to stop contraception when with BC.[13]It is against this background that I must approach the question of her capacity now, taking of course as my starting point the assumption that DD has capacity (section 1(2) MCA 2005) to make decisions about contraception. That assumption would only be displaced if I were to conclude on the balance of probabilities (section 2(4)) that, in relation to the specific decision (i.e. the“matter”: section 2(1))) under consideration: “at the material time [she] is unable to make a decision for [herself] in relation to the matter because of an impairment of, or disturbance in the functioning of the mind or brain” (section 2(1)).[14]For the purposes of an interim order, I need to be satisfied that “there is reason to believe that [DD] lacks capacity in relation to the matter” (section 48 MCA 2005). DD would be “unable to make [that] decision for [herself]” if I were to find that she is unable to understand, retain, use or weigh the “information relevant to the decision” (section 3(1)(a)-(c)).[15]In considering this question, I apply the following principles: i) The assessment of capacity has to be made on the evidence as it presents now, in respect of this current decision: see, inter alia §4.4 Mental Capacity Act Code of Practice (“the Mental Capacity Code”). ii) It is not necessary for DD to demonstrate a capacity to understand and weigh up every detail of the respective options but merely the salient factors. However, given that the relevant factors involve serious and long-term implications for the well-being of DD, it is all the more important that she understands and is able to weigh the information (see Baker J said in CC v KK & STCC [2012] EWHC 2136 (COP) (§69)). This is emphasised by the Guidance offered under the Mental Capacity Code, para.4.19:
“Relevant information must include what the likely consequences of a decision would be (the possible effects of deciding one way or another)... But a person might need more detailed information or access to advice, depending on the decision that needs to be made. If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision”
(emphasis added). iii) The determination of capacity must be decision-specific and person-specific. I must examine the particular characteristics of P (i.e. DD) as they apply now. Capacitous people do not make decisions in a vacuum. If I were to remove the specific factual context from the evaluation of capacity, it would leave nothing for the evaluation of capacity“to bite upon” (City of York Council v C [2013] EWCA Civ 478; [2014] Fam 10). iv) The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision (section 3(4)). In a case concerning medical treatment, the ‘relevant information’ (sections 2(1) & 3(1)/(4)) is that which contains the "proximate medical issues”, not the wider social consequences of the decision (see Bodey J in A Local Authority v Mrs A (by the OS) and Mr A [2010] EWHC 1549 (Fam)). If the ‘relevant information’ extended beyond that which is ‘proximate’, there would be a blurring of the boundary between capacity and best interests, and a more fundamental risk that the Court of Protection would erroneously be straying into exercising a paternalistic jurisdiction (per Bodey J, “there should be some limit in practice on what needs to be envisaged” §63).[16]In A Local Authority v Mrs A, Bodey J proposed that the test for capacity in relation to contraception decisions should be so applied as to ascertain the woman's ability to understand and weigh up the immediate (“proximate”) medical issues surrounding contraceptive treatment which would include: i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); ii) the types available and how each is used; iii) the advantages and disadvantages of each type; iv) the possible side effects of each and how they can be dealt with; v) how easily each type can be changed; and vi) the generally accepted effectiveness of each.[17]In this case, Mr A advised me that if DD were to be found to have capacity to make decisions about contraception, he would be bound – in fulfilling his professional duties in relation to advice on contraception – to advise her to weigh in the balance the following specific risks: i) the risk of a thromboembolic disease during any future pregnancy (DD suffered a thrombotic embolism during her fourth pregnancy); ii) the risk of delivering a pre-term infant (Child 4 was born at 29 weeks); iii) the impact on DD’s mental and emotional health of any further pregnancy (DD has suffered from a delusional disorder following her second and third pregnancies); iv) the additional risks of a home birth for DD (which would be likely to be her preferred mode of delivery); v) the risk of placenta accreta; this severe obstetric complication involves an abnormally deep attachment of the placenta to the myometrium; the likely incidence of this condition is increased by the presence of scar tissue from past uterine surgery, especially following previous caesarean sections. Given that DD is to undergo her fourth caesarean imminently, it would be particularly dangerous for DD. There is a significant risk of extensive haemorrhaging at the point of removal; if bleeding cannot be stemmed DD faces the prospect of hysterectomy; vi) that she faces considerable (and, with each pregnancy, increasing) risks to her life through the delivery of any child. Vaginal birth after caesarean carries considerable risks associated with rupture of the uterus; caesarean section carries risk of operative failure, adhesions or bowel or bladder injury, and the general risks associated with general anaesthetic.[18]Bodey J’s list of ‘proximate’ factors in A Local Authority v A (set out in §16 above) was expressed to be neither comprehensive nor exclusive. I have considered carefully whether the factors listed in §17(i)-(vi) (above) extend beyond those which are ‘reasonably foreseeable consequences’ of, or ‘proximate’ to, the relevant decision. I conclude that they do not. If a capacitous woman would be informed when deciding about contraception that pregnancy for her entailed additional risks, this must be information relevant to her decision whether to avoid those risks by taking contraception. Not to include such information as relevant information would disempower decision making. The Official Solicitor argues that the factors in §17 are simply an application of the first of Bodey J’s criteria. While I do not accept that submission, I am nonetheless satisfied on the facts of this unusual case that these factors are truly ‘proximate’ to the decision which DD has to understand and weigh, at this time, with her particular obstetric history, and should properly be regarded as ‘relevant information’ for the purposes of the capacity determination.[19]I have already considered with care DD’s capacity to make decisions about mode of delivery, and have concluded that her decision making lacks what I earlier described as “the essential characteristic of discrimination which only comes when the relevant information is evaluated and weighed” (§86 [2014] EWCOP 11). In reaching this conclusion, I considered carefully the evidence of Dr. E, Dr. F and Dr. Latham. I remind myself of the agreed opinions of Dr. E and Dr. F (as expressed at §75 of [2014] EWCOP 11) specifically (but not limited to) DD’s: i) “rigid and concrete thinking”; ii) inability to weigh up the pros and cons of any decision required of her; iii) “complete lack of understanding of the risks of her current pregnancy on her health and safety, and was also rigid in her thinking around the ante, peri and post natal care”. These factors all weigh heavily in this determination of capacity.[20]Dr. F has been asked to advise specifically on the question of capacity at this time; he considered that there is indeed reason to believe that DD lacks capacity to make decisions on contraception. He again referred to the extreme rigidity of her thinking and understanding, and difficulty in cognitive flexibility as features of her autistic spectrum disorder[21]He considered (as indeed I have found) that she is unable to “weigh in the balance information regarding the risks of her current pregnancy” and therefore opines that it is likely “when making a choice regarding contraception, she will be unable to weigh up information regarding risks of future pregnancy”; this stems from (or is “because of”: section 2(1)) her autistic spectrum disorder.[22]Even though DD has apparently been able to make capacitous decisions about contraception in the past, I bear in mind (as I discussed at §67 [2014] EWCOP 11) that her functioning appears to have deteriorated since the stroke in 2011, and/or that her fixed beliefs have gained in strength and resolution over time.[23]Taking all of the matters set out in §18-22 above, I am satisfied that there is reason to believe that DD lacks capacity currently to make decisions about contraception. Best interests The Applicants’ plan in relation to education and capacity assessment

Best interests

[24]It remains the Applicants’ wish to assess DD’s capacity to make a decision about contraception. In order that any assessment to determine capacity should be reliable and robust the Applicants recognise that “all practicable steps” must be taken “in order to help [her]” to make the decision (section 1(3)); the court’s intervention can only be justified if those steps have been unsuccessful (see also section 4(4)).[25]In order to fulfil this obligation to DD, an ‘education plan’ has been prepared. It is noted (by Dr. F) that DD has had considerable experience of contraception in the past, and this may enable more effective education. The outline of the plan, to be delivered in three parts, is as follows: i) Part 1: Delivery of family planning education leaflets on all forms of contraception will be delivered for DD (this has been done); ii) Part 2: At the admission to hospital for the caesarean section, efforts will be made to provide DD with information about contraception; it is recognised that this admission is likely to be distressing and traumatic for DD; iii) A full general and sexual health education history will be taken in accordance with the UK Medical Eligibility Criteria; this will be done in 20 minute segments; iv) A capacity assessment will, with DD’s co-operation, take place in the afternoon of the first day of admission. v) On the day following the delivery of DD’s baby, a follow-up session of education will be offered. vi) Part 3: After the birth, DD will be offered two appointments each week for approximately four weeks at the community health centre; if she does not attend, an outreach worker will attempt home visits; vii) A capacity assessment will be attempted at the conclusion of Part 3[26]Various tools are proposed to assist in this education including an easy-read guide to contraception, questions and answers, and a tool kit (including the ability to look at the various contraceptive devices).[27]As indicated in §25(iv) it is of course possible that a viable assessment of capacity may be possible during the forthcoming in-patient admission for the caesarean section. It is also possible that in such assessment, DD demonstrates that she has capacity to make decisions about contraception. If so, the Applicants will respect such a view; I was nonetheless advised (and re-assured) that if at that time DD indicated that she seeks immediate sterilisation (as she has in the past), the doctors would not perform such a procedure at the time of the caesarean section on the following day (notwithstanding the operative benefits of combining the procedures). DD would plainly need time to reflect on such a momentous decision.[28]All assessments of capacity will be conducted by Dr. F.

The Applicants’ plan in relation to short-term contraception

[29]The Applicants propose that DD be provided with short-term contraception while steps are taken to assess her capacity to make decisions about contraception generally. They propose that DD should receive a Depo-Provera injection at the time of the caesarean section. This has effect for approximately 3 months.

DD’s wishes and feelings

[30]It is reasonably clear that DD currently wishes to have no involvement from the statutory services, and wants to be left alone. She values her privacy. I bear in mind again the comment from her letter (May 2014) “I do not wish to come to hospital for any appointment”.[31]It is also apparent that in the past, DD has actively sought contraception (even sterilisation), when she did not wish to bear another child.[32]Plainly DD’s wishes and feelings are a significant factor (ITW v Z [2009] EWHC 2525 (Fam)), but on the facts of this particular case it is difficult to ascribe particular weight to them given that DD has not engaged at all in relation to the issues.[33]It is reasonably predicted that DD will have fixed and firm views that no assessment should be undertaken, particularly against her will. It is equally predictable (although not inevitable) that she would wish to choose not to have contraception at this time. BC’s views can be presumed to be the same.

Education and assessment of capacity to make decisions re: contraception?

[34]It would in my judgment clearly be in DD’s best interests that she be assessed for her capacity to make contraception decisions. Dr. F specifically advised that a full assessment is in DD’s best interests, given:
“the impact of her not using contraception, if she becomes pregnant again … the physical risks and the mental distress by a future pregnancy and the inevitable interference by the state.”
[35]Plainly, if an assessment shows that she has capacity, this course would best vindicate her autonomy to make her own decisions about contraception; alternatively, if she were found to lack capacity, I will have the best evidence available to make decisions in her best interests at any substantive hearing in relation to the issue of contraception. It is in DD’s best interests to seek to achieve clarity on this issue, and to obtain DD’s clear views.[36]It is important that DD’s capacity is assessed, so far as practicable, in the right environment and optimum circumstances. This is in keeping with the principles in section 1(2) and (3)MCA 2005. No party suggests that DD should be compelled to co-operate with the assessment, or compelled to answer questions. The Applicants accept (per §4.57 Code) that threats or attempts to force DD to agree to an assessment are not acceptable. Inevitably, DD is likely to be stressed and anxious about this process, and this may well affect her compliance with education and/or assessment. This is realistically recognised by the Applicants, who assure me that they will take all reasonable steps to encourage DD to participate willingly in the assessment. Giving effect to the best interests declaration – to include forced entry and necessary restraint.[37]Under section 16(5) MCA 2005 I may of course make such further orders or directions as are necessary or expedient for giving effect to my order. In this case, I am invited once again to authorise that DD be removed from home by force if necessary to be conveyed to the Community Health Centre for the purposes of assessment. As before (8 April 2014, and 19 June 2014) efforts will be made to keep DD (and BC) calm prior to and during any intervention. Once at the Community Health Centre DD will be allowed time to relax, before the process is explained to her; she will then be encouraged and persuaded, in accordance with the Code, to accept the assessment. The plan, once again, appropriately emphasises the importance of using the least degree of restraint of DD, and encroaching on DD’s human rights, dignity and autonomy to the minimum extent necessary and only as a last resort to save her life, or prevent a serious deterioration in her mental health.[38]Deprivation of liberty is not of course permitted under the MCA 2005 save in three circumstances, one of which is where it is authorised by the Court of Protection by an order under section 16(2)(a) (see P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19). At §158 [2014] EWCOP 11, I expressed my profound reservations that compelled attendance for education and assessment could/should not be attempted at that time. Although I am concerned about the effect on DD and BC of a repeat of the forced entry into their home, I am nonetheless satisfied that the plan for assessment post-caesarean is in DD’s best interests (see above); the concerns which I expressed at §158(i)/(iii)/(iv)/(v)/(vii)/(viii) [2014] EWCOP 11) are no longer relevant (either to the same extent or at all). Moreover, the proposal for a capacity assessment now: i) Follows also an education programme which enjoys a greater prospect of success than that previously presented (see §158(ii)); ii) Is more likely to be meaningful, given that those providing the education have access to information about DD’s contraceptive history (§158(vi)).[39]Before any question of compulsion arises, the Applicants must take all necessary and practicable steps to engage with DD and to obtain DD’s cooperation to agree to attend for an assessment of her capacity. It is critical that the Applicants pay proper respect to the requirements which I laid out at §131 of [2014] EWCOP 11, which it is appropriate for me to reproduce again here:
“Any physical restraint or deprivation of liberty is a significant interference with DD’s rights under Articles 5 and Article 8 of the ECHR and, in my judgment, as such should only be carried out: i) by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD; ii) as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so; iii) in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible; iv) in accordance with any agreed Care Plans, Risk Assessments and Court Orders.” i) by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD; ii) as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so; iii) in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible; iv) in accordance with any agreed Care Plans, Risk Assessments and Court Orders.”
[40]As before (see §19(v) [2014] EWCOP 11) I require the Applicants to take all reasonable steps to minimise distress to DD and to maintain her dignity.[41]The steps proposed above, subject to the qualifications which I have outlined, are not opposed by the Official Solicitor. Is it in DD’s best interests that she should be administered short-term contraception at this stage?[42]Recent history reveals that without contraception DD is likely to become pregnant again in the relatively near future. The last five of her six children have been delivered since 2009. Even though it appears from DD’s history that the minimum period between delivery and conception has been seven months, the only available evidence relates to live births, not undocumented miscarrriages. It is a point of concern (as I previously mentioned: §149 of [2014] EWCOP 11) that the day after DD was discharged from hospital following the birth of Child 4 by emergency caesarean, she consulted her GP asking for the ‘morning after’ pill.[43]Mr A and Dr Rowlands both advise that ovulation may occur 28 days after the delivery of the child; professional guidance generally advises that contraception should commence by no later than 21 days after delivery.[44]At this stage neither irreversible nor long-acting reversible contraceptive methods are under consideration. However, pending assessment of DD’s capacity to make a decision in relation to contraception, and given the risks associated with her conceiving before the court can consider that evidence, it is in my judgment plainly in DD’s best interests that she be provided with a form of short-term contraception. In so finding, I bear very much in mind that following education on contraception, and assessment, it may be demonstrated that DD has capacity to make this decision for herself (section 4(3) MCA 2005); for the time being this is the least restrictive option (section 1(6) MCA 2005), and one which meets her needs.

What form of contraception?

[45]The full range of contraception has been discussed by Dr. Rowlands in his helpful report; for reasons connected with DD’s ability to comply with certain contraceptive regimes (i.e. diaphragms, contraceptive pill, and condoms) only limited options have been actively reviewed at this hearing. Two forms of temporary contraception have been specifically discussed, namely: i) Depo-Provera (or Depot Medroxyprogesterone acetate: DMPA). This is a short-term contraceptive; the side effects can include heavy and irregular bleeding, fluid retention, bloating, fatigue, dizziness and abdominal pain; there is limited evidence that if a patient has a current pulmonary embolism or deep vein thrombosis that Depo-Provera is contraindicated; even though DD has a history of embolism, it is not thought (per Mr. A) that a single injection will have an adverse effect; this form of contraception can reduce bone mineral density, though (again per Mr. A) this is unlikely to be relevant with one dose. For the avoidance of doubt, a new DMPA formulation – Sayana Press – was referred to by Dr. Rowlands, but has no benefits (for present debate) over Depo-Provera. ii) Subdermal Nexplanon Implant; this contraceptive implant is placed just beneath the skin of the inner aspect of the upper arm. Hormone is released at a constant rate, and this would be effective for up to three years. The implant is reasonably easily removable (it is implanted just under the skin, and a determined person could remove the rod with a sharp instrument); insertion and removal is more invasive than an injection (it requires the insertion of a rod), and would have to be removed by surgical intervention. Some women develop heavy bleeding with an implant other side effects include breast pain, dizziness, and abdominal pain.[46]DD has experience of both of these forms of contraception. Regrettably both have caused her some adverse side-effects. DD was injected with Depo-Provera in 2002; records show that she suffered some of the well-known side-effects associated with this – namely irregular and heavy bleeding. In 2003, she is reported to have suffered heavy bleeding following the insertion of an implant; she also found that the implant irritated her skin. I bear this evidence in mind, but consider that one or other of these forms of contraception needs to be used as a short-term measure for DD at this time.[47]Mr. A and Dr. Rowlands favour the administration of a Depo-Provera injection. The injection may be given while DD is sedated by general anaesthetic for the purposes of the caesarean section. This is the least restrictive form of contraceptive while assessments are undertaken in relation to her capacity more generally. I agree with them that this form of contraception at this stage is likely to be in DD’s best interests.

Conclusion

[48]I am satisfied from all that I have heard and read that it would be appropriate to grant the relief sought by the Applicants as set out above. While there was no material opposition from the Official Solicitor to the course proposed, the evidence has appropriately been rigorously tested in order that I could be sure that the result was indeed in DD’s best interests.[49]Longer-term contraception for DD may need to be considered by the Court if the proposed assessment of capacity shows that DD is unable to make such decisions for herself. A further hearing will therefore be scheduled before me in approximately two months time, which can be vacated if necessary.[50]That is my judgment.

Cited in 10 later judgments

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