Delay to ruling over sterilisation


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The Independent Online

The mother of a pregnant woman with learning difficulties made a tearful plea to a court this morning for her daughter to be stopped from having any more children – including the possibility of her being forcibly sterilised.

The woman’s 21-year-old daughter, both of whom cannot be named for legal reasons, is due to give birth tomorrow to her second child by caesarean section. She has significant learning difficulties which make it impossible for her to look after her own children who are being brought up by her mother.

The mother, known in court documents as Mrs P, hoped that a sterilisation could be carried out after the caesarean, a proposition that was supported by her local NHS trust. But the Court of Protection ruled yesterday that a decision could only be made once expert evidence had been obtained.

Fighting back tears Mrs P told Mr Justice Hedley why she wanted her daughter, known as P, to be stopped from having anymore children.

“From my point of view I want what is best for my daughter,” she said. “We are supporting her and helping her bring up her children and we keep them together as a family unit. But we can't carry on supporting more and more children.”

The court heard how P was sexually healthy and active but lacked the mental capacity to care for her children or understand the repercussions of falling pregnant again.

“She doesn't see anything wrong in her behaviour,” Mrs P said. “She hasn't got the capacity to realise her actions. If she has more children we can't make a commitment to bring them up anymore. I try to explain to her that any future babies she has will go - have a new mum and dad. She doesn't understand. She thinks she will see them on weekends and at birthdays and Christmas. She doesn't understand that they will get a new mummy and daddy.”

The highly controversial case is being heard in the Court of Protection, a specialist court that deals with the financial, medical and personal affairs of those who lack the mental capacity to make decisions about their lives.

The vast majority of cases are held behind closed doors but Mrs P’s application is being heard in open court because of the profound public interest in the case and the court’s eventual decision.

Mrs P is seeking a declaration that a sterilisation procedure would be lawful and in her daughter’s best interests. The court will now have to decide whether P lacks the mental capacity to make decisions about contraception and, if so, whether she should be sterilised by means of a “tubal ligation”.

The court will also decide whether less invasive options such as an injection or contraceptive implant could also be used to halt any further pregnancies.

In a short judgement explaining his reasons for adjourning the hearing until further evidence could be heard Justice Hedley said: "The matter is before the court because there is strong evidence of P's inability to care for any children in any realistic way that may be born to her.”

“The consequence of that is that if she were to have a child which could not be cared for within the family there would almost certainly be an immediate intervention at birth and a permanent removal with a view to adoption outside the family.”

The judge added that although the best time to perform sterilisation surgery would have been after the caesarean birth there was currently not enough evidence to decide whether P lacked capacity and what her best interests would be.

"Much as the court shares Mrs P's anxieties about further delays and losing this opportunity, I am satisfied that the requirements of the Mental Capacity Act 2005 cannot be complied with at the present time so as to enable the court to make that decision,” he said.

Instead Justice Hedley called for a further set of hearings in April and May to decide which course the court should take once expert evidence could be gathered.

Continuing the order that the case should remain in open court, the judge said this was so there may be an understanding not only of the powers of the Court of Protection, but "a real opportunity for debate" about "why the court should have these powers and, if it should, how it should use them".