Where it is proposed to perform a sterilisation operation on a patient incapable of consenting to the procedure, there should be the fullest consultation with the carers and any close relatives who have a caring role about the need for the procedure, the circumstances in which the patient lives and the benefits and disadvantages of proceeding.
If the proposed procedure is ‘non-therapeutic’, that is, solely for contraceptive purposes, an application to the Court of Protection for its authorisation is mandatory: see para 11 of Practice Guidance (Court of Protection: Serious Medical Treatment). This was emphasised by Cobb J in A Local Authority v K, where he also made it clear that referral to the Court of Protection in a case involving non-therapeutic sterilisation of an incapacitous person ‘could and should always be considered at the earliest moment’.
Subject to the limitations in ss 4A, 4B and 6 of the MCA (restraint and deprivation of liberty), and ss 24 – 26 (advance decisions to refuse treatment), s 5 allows clinicians to undertake medical treatment of patients whom they reasonably believe lack capacity to consent in certain circumstances. If a clinician performs an act in connection with care of treatment of a person, they do not incur any liability in connection with the act – which they would not have incurred if the person had had capacity to consent and had done so – if:
- they have taken reasonable steps to establish whether the person lacks capacity in relation to that treatment;
- they reasonably believe that the person does lack capacity; and
- they reasonably believe that it is in the person’s best interests to undertake the treatment.
The limitations in ss 4A, 4B and 6 are complex and must be read with care:
- the deﬁnition of ‘restraint’ is far wider than many clinicians might anticipate;
- a clinician is only entitled to restrain a patient if it is necessary to prevent harm and a proportionate response to the likelihood and seriousness of that harm; and
- acts under s 5 which deprive a patient of their liberty (and where the deprivation of liberty is not otherwise authorised by court order or under the DOLS regime) will only be lawful in limited circumstances –life-sustaining treatment or where the clinician reasonably believes it necessary to prevent a serious deterioration in the patient’s condition –and even then, only while a decision is sought from the court.
If the proposed sterilisation is ‘therapeutic’ for treatment of some physical or mental condition, there is post-MCA judicial guidance about which cases should be brought to court for declarations and orders authorising the sterilisation, as opposed to managed without court involvement. The Practice Guidance does not refer expressly to therapeutic procedures that are not for the primary purpose of sterilisation, but there can be little doubt that any procedure that has the effect of sterilising the patient will involve ‘serious interference with the person’s rights under the ECHR’.
More recently, in University Hospital Coventry and Warwickshire NHS Trust v K, Mrs W, which concerned a young woman with cancer who required urgent treatment that would have the effect of triggering an early menopause and rendering her infertile, Hayden J observed that, notwithstanding the consensus amongst the treating clinicians and K’s mother, the Trust had properly decided that an application to court was required.
Although each case is necessarily fact-specific, it is suggested that an individual proposing to undertake a therapeutic sterilisation on an incapacitated adult should seek court authorisation where:
- there is any dispute over the patient’s capacity to make a decision about the treatment, including the effect of sterilisation;
- there is any dispute, whether as between the patient and the clinicians, as between the clinicians, or with anybody else caring for the patient, over:
- whether the sterilisation should be performed; or
- whether it is in the patient’s best interests; or
- whether there is any practicable, less intrusive means of treating the condition;
- there is a real risk that the patient will not co-operate and will require more than transient forcible restraint;
- there is a real risk that the patient will suffer a deprivation of her liberty which, absent a court order which has the effect of authorising it, would otherwise be unlawful (ie not authorised under s 4B of or Sch A1 to the MCA).
Given the enormity of the impact of a sterilisation, it is suggested that in all but the clearest of cases, court authorisation should be obtained.
It would be prudent for those making the application to have available the favourable opinion of an independent gynaecological expert and of a psychiatrist specialising in the rehabilitation and care of patients with the relevant mental disorder. The court has power to control the evidence adduced including the discipline and identity of expert witnesses, whether their evidence is to be admitted only in writing and whether they are to attend for cross-examination.
While the court will have the power to order there to be a single expert, this is unlikely to be desirable in any other than the most clear and undisputed case in this field. The purpose of the matter coming before the court is to ensure that the issues are properly examined in the interests of the patient and the public; there will be a danger of the public perceiving the court as merely rubber-stamping the opinion of the appointed expert if this sort of restriction were to gain currency.