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Powers of restraint: the path of least intervention?

Date:31 MAR 2015
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Pupil Barrister

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.’
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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.