A controversial court that still holds its hearing in private will decide tomorrow whether a pregnant woman with learning difficulties should be forcibly sterilised once she gives birth.
Health workers from a local NHS trust and council, who cannot be named for legal reasons, have asked the secretive Court of Protection to decide whether the woman should be forced to have her fallopian tubes cut to stop her falling pregnant again.
The Court of Protection is one of Britain’s last secret courts and 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 its hearings are held behind closed doors – something critics say enables controversial decisions to go ahead with little or no public scrutiny.
The Independent won a legal victory last year which allowed journalists to attend proceedings, and report a case anonymously. But in opening the doors to the media, the Court of Appeal stressed that media access would only be considered by the Court of Protection on a case by case basis.
The forced sterilisation request is just one of a number of highly fraught decisions which the court has to make. Last month a Court of Protection judge ruled that a 41-year-old man should be banned from having anal sex because he lacked the mental capacity to understand the health implications.
The court has also been asked by local authorities to rule whether parents and carers should be separated from each other. There are at least two ongoing cases where local authorities want judges to sever or curtail access between a parent and son or daughter who lacks capacity. In both instances there have been acrimonious disputes between the parents and health workers over treatment.
Since the Independent’s battle to open up the Court of Protection, the paper has received numerous calls from people who allege that local authorities have been using the automatic secrecy governing the Court of Protection to severely restrict access to their loved ones. Because the hearings are largely held in private and no court listings are generally published earlier than the afternoon before hearings, it remains difficult to investigate and analyse such allegations.
In a highly unusual move Justice Hogg has ruled that tomorrow’s sterilisation hearing will be held in open court because of the overwhelming public interest and the seriousness of the medical intervention proposed.
All the participants must be anonymised to protect the woman’s identity. Reporters will be allowed to publish details about the woman’s medical condition, any proposed forms of treatment and the judge’s final ruling. But they are forbidden from identifying the woman, any of her family members or carers and the local authorities who have brought the case.
Disability campaigners have already expressed concern over the case, arguing that sterilisation is the most drastic of a number of potential options that could be used to ensure the woman, who lacks the capacity to look after children, does not fall pregnant again.
They have urged the court to tread carefully in its decision making which could seriously breach the woman’s human rights.
David Congdon, head of policy at the disability charity Mencap, said sterilisation without consent was “awful and unacceptable” but rare in modern times.
“It is a pretty drastic step to sterilise someone against their will simply because they lack the mental capacity themselves,” he said. “It is a gross invasion of someone’s basic rights unless there are clear medical grounds and there do not appear to be in this case. Using sterilisation as a form of contraception is totally unacceptable. There are other methods of contraception. Years ago there were lots of cases like this but we hear of very few these days.”
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