Striking the ‘best interests’ balance

January 02 2018

Local Government analysis: Discussing the Court of Protection’s decision in Hospital Trust v V (by her litigation friend, the Official Solicitor), Ruth Henke QC at 30 Park Place Chambers points out that this fact-specific case demonstrates the need to operate in the real world and factor in human fallibility.

Original news
Hospital Trust v V (by her litigation friend, the Official Solicitor) and another [2017] EWCOP 20

The Court of Protection (COP) ruled that it was in the best interests of a young woman with a severe learning disability, who had given birth to a child following circumstances ‘which in all probability amounted to rape’, for a contraceptive patch be administered for a trial period of up to six months.

What were the key issues before the COP?
This case concerned V, a 21-year-old lady with severe learning disabilities. When she was approximately 19 years old she had conceived a child in circumstances that probably amounted to rape. She had been extraordinarily distressed by the pregnancy and the intrusive medical tests and procedures that had inevitably involved. Her distress had only been compounded by her inability to understand what had happened to her and by the profound anxiety and stress that she had experienced on giving birth via c-section, and afterwards on being separated from her child.

V was extremely vulnerable; being unprepared to engage with strangers readily and lacking any natural protective instinct. At the heart of this case was a common aim to safeguard V in the future. The competing arguments were between the health and social services authorities on the one side, who wished to be permitted to provide contraception in the form of a patch to V as part of a comprehensive safeguarding plan, and the Official Solicitor and V’s mother on the other hand, who argued that the safeguarding package was sufficient to protect her without the administration of contraception which they said was unnecessary. It is in that context that Cobb J determined the following issues:

• whether V had the capacity to consent to sexual relations
• whether she had the capacity to consent to the administration of non-therapeutic contraception
• whether it was in V's best interests for non-therapeutic contraception to be administered

What did the COP decide, and how helpful is the judgment in clarifying the law in this area?
In relation to the specific capacity issues, there was unanimity among the parties. V had a severe impairment of mind, such that she had neither the capacity to consent to sexual relations nor the administration of non-therapeutic contraception. The court agreed with their common view. The area of real dispute was in relation to where her best interests lay. In deciding the issue, Cobb J took into account the following factors:

• V herself had been able to express the view that she did not wish to become pregnant again, she wished to avoid surgery, she did not want intrauterine contraception and she would favour a patch. While V did not have capacity to make the decision, her view was rightly placed in the balance
• the views of V’s mother, who spoke on behalf of V’s family and expressed a deep distress in the family that the pregnancy had occurred and a real determination that it should not happen again, which of itself created a future protective factor
• the concern of V’s family about the potential side-effects of contraception, which Cobb J set against the potential hormonal benefits and the fact that a trial period was proposed which could be used to monitor the effects of the patch on V
• the fact that there had been no further assault over a 14-month period, which was said to indicate that the safeguarding package of 24/7 supervision was working. Cobb J set this against the fact that even when applied willingly and vigorously by a family, as here, it could never be wholly watertight, and in the real world there would always be occasions when by reason of human failure or mistake there would be periods when V was unprotected
• the vulnerability of the safeguarding plan was underlined by V’s own lack of awareness of danger and her lack of understanding that she needed constant supervision in the community, which manifested in V taking opportunities presented to her, however fleeting, to leave the family home unaccompanied
• the contraceptive patch was designed to reduce the risk of pregnancy should the safeguarding plan fail, not to lessen the need for the safeguarding plan

In the circumstances Cobb J considered the benefits of the contraceptive patch outweighed the potential detriments and made the necessary declaration, which he would review at the end of the six-month period during which the patch would be trialled.

What are the practical and/or wider implications of the judgment?
While this is an interesting case, it is fact-specific. It was specifically stated that the decision was not intended to set a precedent one way or another for all incapacious women.

What are the takeaway points for practitioners, and what should they be mindful of when advising in this area?
This case is an example of the best interest balance being made. It demonstrates that each best interest decision is person and fact-specific. It also demonstrates the need to operate in the real world and factor in human fallibility.

Here, a very tight safeguarding plan, which all were eager to implement, failed on occasion, and that risk of failure was such that the contraceptive patch was seen as an additional safeguard against the consequences of sexual assault if the plan failed.

Ruth Henke QC specialises in the protection of and provision of services to children and vulnerable adults. Her reputation as an expert in the field and her knowledge of the relevant law is widely acknowledged. Ruth is regularly instructed by local authorities, LHBs, hospitals, parents, relatives, incapacitated adults and children. She appears in the Family Court, the COP and the Administrative Court.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Local Government on 7 November 2017.