Sterilisation is a form of medical treatment with grave consequences. It removes, usually permanently, the ability to reproduce. Medically it is now relatively simply achieved and therefore the temptation to solve perceived social problems by this route may be increased. While the procedure is performed on men and women who consent to it as a matter of routine, this will always be a socially sensitive area, requiring meticulous attention to counselling and consent protocols if the anxieties provoked by history are to be allayed.
As with any other invasive procedure, sterilisation cannot be performed without the consent of the competent patient. Usual procedures for obtaining consent apply. Particular attention must, however, be paid to the need to explain to the patient the material risks associated with the procedure and any reasonable alternative or variant treatments.
Sterilisation of people unable to make their own decisions is an emotive and sensitive subject and any case involving it must be treated with considerable care and caution. There are obvious reasons for this.
The twentieth century saw horrific policies implemented with the objective of promoting ethnic purity. The Nazis embarked on widespread sterilisation of particular groups, including the mentally disabled, as part of their overall plan of Aryanisation. Less well remembered is the policy followed by many states in the USA encouraging the compulsory sterilisation of mental patients, a policy found to be constitutional by the Supreme Court in 1927 where Holmes J felt able to declare:
‘Three generations of imbeciles is enough.’
Such attitudes have largely disappeared by reason of the emphasis placed on human rights which are now recognised in domestic law, in particular the rights to respect for private and family life and to marry and found a family. The proposal to sterilise someone without their consent or even comprehension may, at first blush, seem a denial of these fundamental rights and a return to dated and repugnant attitudes.
Nevertheless, countervailing considerations may arise. Paternalistic attitudes towards the care of people with learning disabilities or other mental impairments have largely been replaced with a desire to enable every person to live as independent and fulfilled lives as possible. Capacity is decision- specific. People may retain capacity to consent to sexual relations but lack capacity to make decisions about contraception. Safeguarding restrictions may prevent them from associating with partners with whom they could have sexual intercourse because of the disadvantages, both psychological and physical, of producing children. Sterilisation may, however, allow a fulfilling emotional and sexual relationship to develop without the trauma and damage likely to be caused through pregnancy and/or birth. In such circumstances, sterilisation, rather than being a restriction on a person’s liberties, can be a means of freeing a person with disabilities from the constraints that would otherwise be necessary.
The last four decades have seen an increasing awareness of, and concern about, the vulnerability of those who cannot care for themselves, highlighted by incidences of sexual abuse by carers and others. It is in this context that the safeguarding of those who care for vulnerable people has become increasingly rigorous.
Proposals for sterilisation for non-therapeutic reasons should be regarded as the last resort after all other steps to address the concerns thought to arise in any particular case have been tried without success. Given the enormity of what is being sought and the competing considerations in evaluating such a proposal, the sterilisation of a patient who lacks the capacity to consent, whether child or adult, must not be undertaken without an appropriate application being made to the court and a thorough examination of the evidence and all relevant issues. It is a matter of concern that some doctors and public bodies remain unaware of the need to refer the question of non-therapeutic sterilisation of an incapable person to the Court of Protection. As Cobb J stated in A Local Authority v K:
‘Referral to the Court of Protection in a case such as this could and should always be considered at the earliest moment … Such a treatment decision is so serious that the Court has to make it.’
Where a proposal to sterilise a child is being considered the following steps need to be taken.
- It must be determined whether the procedure is merely the side-effect of treatment required for therapeutic reasons, for example to treat cancer. If it is, then the usual procedures for obtaining authority to treat a child may be adopted. It is suggested that proposals justified on the ground of the treatment of dysmenorrhoea should be scrutinised with exceptional care to ensure that there is no less radical treatment available pending the child’s attainment of majority.
- If the prime purpose of the procedure is sterilisation, and the child is not mentally disabled, it is highly unlikely that the procedure could be found to be in the best interests of the patient and careful consideration would need to be given to whether the decision should not be deferred until the child has achieved adulthood. If the child is Gillick competent and desires the operation, given the sensitivities described above, an application to the court should be seriously considered before proceeding.
- If the child is mentally disabled and the proposed procedure is ‘non-therapeutic’, there should be a full discussion with those having parental responsibility. Relevant information should be obtained from social workers and others who may have views on the child’s best interests.
- Consideration must be given to the possibility of alternative contraceptive measures, particularly where there is a prospect of the child gaining in maturity and understanding, and to whether, even with sterilisation, sexual encounters are likely to occur or be permitted or be in the child’s interests.
- If it is decided, after discussions, that an operation in childhood for permanent sterilisation would be in the child’s best interests, and that it would not be reasonable to wait until adulthood, an application must be made to either the Family Division of the High Court or to the Court of Protection, depending on the age of the child.
- The application must be supported by evidence from carers and others to explain why an irreversible operation is necessary in the best interests of the child and to describe the consideration and consultation that led to the decision. Ethical, social, moral and welfare considerations will be taken into account, as will emotional, psychological and social benefits and detriments to the patient – for example, the risk that if the patient becomes pregnant or gives birth she is likely to experience trauma or psychological damage greater than that resulting from sterilisation.
- The court will, in effect, prepare a balance sheet of the advantages and disadvantages for the patient. Assessment will be made of the likelihood of advantages and disadvantages in fact occurring – for example, the risk that pregnancy will occur. Medical evidence will be required in relation to the risks to the patient of not being sterilised and of the operation itself. It can be expected that proceedings will usually involve a thorough adversarial investigation of all possible opinion and of the possible alternatives to sterilisation. All reasonable arguments against sterilisation will be presented and considered.
- CAFCASS or the Official Solicitor will carry out their own investigations and obtain expert evidence necessary to satisfy themselves that all medical, psychological and social evaluations have been conducted and that all appropriate matters are able to be ventilated before the court. Where the patient is able to express any views, however limited, the patient will be interviewed in private by her representative.
- A General 7.1
- B The competent patient 7.2
- General rule 7.2
- Informed consent 7.3
- The role of partner/spouse 7.4
- Procedure 7.5
- C Adults 7.6
- Competent adults 7.6
- Adults lacking capacity to consent 7.7
- Capacity 7.7
- Best interests 7.8
- General application of ‘best interests’ principle in sterilisation cases 7.9
- The prospect of attaining or recovering capacity for a relevant decision 7.10
- The risk of sexual contact 7.11
- The availability of other methods of contraception 7.12
- The need for counselling and preparation 7.13
- The risks of pregnancy 7.14
- Freedom of association and reduction of intrusion by statutory services 7.15
- The effect on the standard of care 7.16
- Male patients 7.17
- The immediacy of the risks 7.18
- Procedure 7.19
- D Children 7.20
- General principle 7.20
- Children with no learning disabilities 7.20
- Children with learning disabilities 7.21
- Best interests 7.22
- Procedure 7.23
- E Conclusion 7.24