family law, powers of restraint, court of protection, intervention, contraception, Mental Health Trust & Ors v DD and BC [2015] EWCOP 4
Recent Court of Protection case law on 'the
least restrictive option'.
When asked to approve a Deprivation of
Liberty, the Court of Protection (COP) operates under a strong presumption of
minimal restraint and intervention. This reflects the ECtHR stance on proportionality
and resounds with other provisions for state intervention, such as in children
law, where s 1(5) of the Children Act 1989 sets out a ‘no order’ presumption. Recent
COP case law has nuanced this presumption somewhat, so it is worth returning to
the starting point – s 1(6) of the Mental Capacity Act 2005 (the 2005 Act),
which reads (emphasis added):
‘Before the act is done, or the decision is
made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a
way that is less restrictive of the person's rights and freedom of action.’
The recent case of
Mental Health Trust & Ors v DD and BC [2015] EWCOP 4 has raised
questions on the degree of consideration the COP must have to the ‘least
restrictive’ option.
In this case the circumstances were extreme
and the intervention exercised was correspondingly invasive. DD was a 36-year-old
woman who had been the subject of five COP decisions in the previous 9 months.
She had a diagnosis of autistic spectrum disorder, mild to borderline learning
difficulties with an IQ of 70 and also displayed characteristics consistent
with an attachment disorder, likely to be a result of physical or possible
sexual abuse as a child. DD had recently undergone her sixth pregnancy and, due
to complications, there was medical evidence to suggest that a further
pregnancy would place her life at risk.
In February 2015 Cobb J was asked to
determine whether, on the basis that DD lacked capacity, it was in her best
interests to receive long-term contraception or sterilisation, and if so, which
specific form of intervention. In
agreeing with the expert evidence before him that the preservation of DD’s life
required medical intervention, Cobb J conducted a ‘balance sheet’ analysis of
the sterilisation and contraception options (para [103]). In considering
what was in DD’s best interests, his approach to s 1(6) of the 2005 Act
was as follows:
‘Section 1(6)
does not require me necessarily to choose the less restrictive option where a
choice exists. I am obliged to have “regard” to the principle of less
intervention, but can plainly opt for the intervention which is not the least
restrictive if it is in the best interests of the individual involved: see C v
A Local Authority [2011] EWHC 1539 (Admin) per Ryder J, at para [61].
It
is accepted by counsel, unsurprisingly, that sterilisation is not the “less restrictive” medical option in terms of
irreversible (or largely irreversible) treatment to bring an effective end to
child-bearing opportunities for DD; it is indeed the more, or most,
restrictive. However, that is not the whole picture.
DD's "rights and freedoms" must be viewed in a wider context than just the medical procedure itself; her “rights and freedoms” include the clear right to respect for her privacy. Sterilisation is in this context, in fact, much more likely to free her from further intrusion of her “private life” from professionals, whereas the insertion of a coil (carrying with it a greater need for monitoring and in due course replacement/removal) would not. In this wider sense, sterilisation is in my judgment the less restrictive of the two principal options under consideration.’
Cobb J’s judgment presents two interesting
strands of thought. First, his reasoning that the option of highly invasive
irreversible surgery is in fact less interventionist; secondly his assertion
that, in any case, the best interests principle takes priority over concerns of
minimal restriction.
The balance sheet analysis of DD’s
contraceptive options included an argument that, although major surgery would
be invasive and irreversible, the alternative option of repeated medical
intervention over the course of her life would be cumulatively more
interventionist. In interpreting ‘least restrictive’ for the purposes of s 1(6)
then, considerations are not simply as to extremity and invasiveness (tabloid
grabbing though surgical sterilisation may be), but also as to frequency, length,
pragmatic long-term prospects and the triggers of distress unique to the
protected party (P). Even if a course of action is an extreme curtailment of P’s
liberty under Art 5, an overview of P’s other rights and freedoms (in this
case, long term privacy) informs any assessment of restraint.
In many ways this is wrapped up with
best-interests principles and leads to Cobb J’s secondary assertion that
greater intervention is permissible where an overall welfare analysis deems it
in P’s best interests. He draws authority from the case of
C v A Local Authority [2011] EWHC 1539 (Admin), [2011] COPLR Con Vol 972 where Mr Justice Ryder as
then was stated at para [61]:
‘While
regard must be had to the principle of acting in a less restrictive way, the
best interests principle takes priority i.e. the option which is in the
person's best interests must be chosen which
may not necessarily be the least restrictive option available.’
In terms of Cobb J’s second ‘best
interests’ argument, it is interesting to compare this approach to the
principles of intervention in children cases. The draconian nature of state
interference with Art 8 was considered in
YC v UK (2012) 55 EHRR 967, where it was emphasised that ‘it is not
enough to show that a child could be placed in a more beneficial environment
for his upbringing’. This has been reiterated in the plethora of cases flowing
from
Re B (Care Proceedings: Appeal)
[2013] UKSC 33,
[2013] 2 FLR 1075 where the importance of the ‘least
interventionist approach’ has been restated. For children then, the
consideration is two fold: (1) has the threshold of harm been crossed? (2) What
is the least interventionist measure that will guarantee the child’s future
welfare?
Although
subtly different, the ‘best interests trumps all’ COP approach seems to gloss
over this two-limbed-logic. Following Ryder LJ’s guidance in
C, there is no obligation on the court
to choose the least interventionist method of guaranteeing P’s welfare. Whether
this method ensures adequate consideration of proportionality in line with
ECtHR case law, remains to be seen.
See also Hannah's article for April Family Law, 'Deprivation of Liberty in the Home: the end of the "fairytale"?' at [2015] Fam Law 437.
Order by
Newest on top Oldest on top