19 October 2018, by Kirsten Heaven
This judgment raising difficult issues around capacity, sexual relations and the covert use of contraction is part of long-running proceedings involving P. P is a vulnerable young woman with learning disabilities. In earlier proceedings concerns arose that, by reason of her learning difficulties, she was vulnerable to sexual exploitation, pregnancy and sexually transmitted diseases and as a result she was subject to a covert insertion of a contraceptive device (IUD). There was some evidence that P may acquire mental capacity to consent to sexual relations and contraception if educational work was undertaken.
Several years passed before the matter returned to court to reconsider, amongst other things, P’s capacity to consent to sexual relations and reassess the IUD and the fact that P was unaware of its placement. It was only in these proceedings that it was appreciated that a member of P’s family had not been consulted and they were joined to the proceedings.
Baker J neatly sets out in the judgment a summary of the general principles on capacity and, in particular, the test that ought to be applied in the context of sexual relations and decisions on contraception (including covert contraception – for which there is no specific reported authority beyond the provision of covert medication). Interestingly, Baker J notes that despite the rescission of Practice Direction 9E (which removes the special procedural rules requiring all cases of serious medical treatment of incapacitated adults to be brought before the court) and the very recent Supreme Court decision in NHS Trust v Y and another  EWHC 2866 (QB) (not mandatory to bring withdrawal of CANH to the court if everyone is in agreement), given the serious infringement of rights involved in instances of the covert insertion of on IUD most, if not all, cases should be brought to the court for a consideration of best interests.
After considering serious concerns raised by P’s family, Baker J came to the view that P had the capacity to consent to sexual relations and that it was in her best interests for the IUD to remain in place until the end of its normal ten-year span. He also reluctantly came to the view that P should not be told about the IUD but was clear that this state of affairs could not continue indefinitely and it was 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 a way that includes P and respects her personal autonomy and human rights.