Poor Mrs P. She has asked the court of protection to give permission for her daughter, P, to be sterilised. Mrs P is already caring for one of the 21-year-old's children, and another is imminently due. Mrs P cannot get her daughter to understand that there can be no more babies in their home – that if she becomes pregnant again, and has another baby, then it will have to be put up for adoption, and she will no longer see the child.
Mrs P's contention is that her daughter does not have the mental capacity to make decisions about contraception – or any other aspect of family planning, for that matter. Mrs P believes, therefore, that sterilisation is in P's best interests. In this belief, Mrs P is supported by her local authority and NHS Trust. The court, however, has said that there is not enough evidence that P does not have sufficient mental capacity to justify the imposition of such a serious operation without her consent. There will be a further set of hearings in April or May. Mrs P, meanwhile, will presumably continue dealing as best she can with whatever consequences of her daughter's fertility come along. Mrs P has all of the responsibility, and none of the power. That's always a frustrating situation. In this case, it's surely utterly miserable.
Obviously, this case has attracted public interest. The idea of forced sterilisation is a horrific and morally repugnant one. Yet the idea can take hold, all the same, in seemingly placid societies, or minds, among people who get carried away with the idea that they know best. No wonder disability rights groups are queasy about this case, and concerned about its possible implications.
One thing is for sure though. It is extremely healthy that this case is in the public domain. The court of protection started dealing with health and medical matters only in 2007, under the Mental Capacity Act, 2005. At first all hearings were in camera, but it was later decided that, on a case-by-case basis, access to information should be granted, and redacted reporting should be allowed. Already in 2011 two highly significant cases have thereby entered the public arena. It is very instructive to compare and contrast these two cases.
The other hearing involved a 41-year-old man known as Alan. It was decided that he lacked the capacity to consent to sexual relations, and he presently lives under a regime of close supervision aimed at stopping further sexual contact. This is odd, is it not? There does not seem to be any dispute over P's capacity to consent to intercourse at all. The emphasis is instead on limiting possible procreation. Why are these two cases so different? Gay rights campaigners suggested in January, when the case was first heard, that the decision to attempt to end Alan's sexual relationship is entirely because it is with another man. Comparison with this new case suggests they are right.
The legal small-print confirms that sex is a basic act and that very little mental capacity is needed to consent to the physical process itself. People need only be able to possess understanding of the mechanics of the sex act. But two further questions are asked in mental capacity hearings, which aim to take into account the physical consequences of having sex. Are the health risks understood? Is the risk of pregnancy understood?
In Alan's case, there is no risk of pregnancy. Nor would there be in P's case, were sterilisation to be enacted. Yet, with Alan, the court has ruled that a failure to understand the health risks involved in intercourse is enough to suggest a lack of capacity to consent. Surely this implies that, even sterilised, P could still be judged by the court of moral realm, and examined in the real world. Perhaps the court should be establishing more fundamental questions before taking a decision on whether to sterilise a young woman without her full knowledge?
P lives at home with a mother who clearly has no wish to chaperone her all the time, thereby curtailing her daughter's freedom as an adult. Clearly P, on at least two occasions, has had sex with a man who is eminently capable of having unprotected sex with a woman of limited mental capacity, with no great concerns about whether she becomes pregnant, and no discernible wish to actually care for her and any children she may have by him. Yet, the ability of people to saunter around irresponsibly impregnating others seems, in this case, sacrosanct, even when the recipient of such attention may not have the mental capacity to consent in a meaningful fashion.
Alan, on the other hand, is under the care of his local authority, which went to the court of protection after a sexual relationship developed between him and the man he shared council accommodation with. The halting of this relationship may not be permanent. The court of protection has ruled that efforts must be made to teach Alan that there are health risks involved in having intercourse. If he can show understanding of this, then he will be allowed to continue a relationship that had been ongoing and, it seems, enjoyable.
In both P's and Alan's cases, the judge, if not the jury, is still out. But a couple of things seem extraordinary. First, it would have been pretty easy to check whether Alan was actually at risk of disease, by checking with his partner. Second, it seems accepted that there is no question that P's partners could or should be controlled. One thing is certain. If societies are judged on the way they treat their most vulnerable, then the decisions of the court of protection most certainly need to be monitored, discussed and followed.
