A best interests decision about contraception and residence

By Jasmine Thomson, 28th April 2021

I am a first-year social work student at Bournemouth University. I was lucky enough to hear about the Open Justice Court of Protection Project through one of our lecturers and was immediately intrigued. So, I arranged to observe a hearing as soon as I could.

The hearing I observed was on 20th April 2021 before Mr Justice Hayden at the Royal Courts of Justice via video link (Case Number COP 13663805). I was, unfortunately, only able to attend the first half of the hearing in the morning. but Celia Kitzinger (who attended the whole day) informed me of what happened in the afternoon.

At the beginning of the hearing, there was a summary from one of the barristers, Alexander Campbell (representing the local authority and the clinical commissioning group).  He said P is a lady in her early 40s with a number of mental health diagnoses: she has schizoaffective disorder, autism spectrum disorder, moderate learning disabilities and a lengthy mental health history since childhood, compounded by drug use.  She also “exhibits sexually disinhibited behaviour”: she has sometimes in the past evaded her carers and sought out casual sexual encounters.

She is currently living in all-female secure accommodation under s. 3 Mental Health Act, but the plan is to discharge her from s. 3 and move her to a supported living placement, which currently has only male residents.  This plan was supported by the lawyer acting for P (via the Official Solicitor), Leonie Hirst.  The judge was being asked to declare that it was in P’s best interests to move to this new, mixed sex, supported living placement.

He was also being asked to order that P should be given a contraceptive device (also supported by P’s own representative). This was because, due to the medication P is on (sodium valproate – a mood stabiliser), it is vital that she does not fall pregnant: this medication carries a high risk of fetal defects (check out this leaflet).  It wasn’t really possible to change her medication because when this had been tried, and she’d been given a different mood stabiliser, she became very unwell. 

According to a consultant in sexual and reproductive health who had assessed P and produced a section 49 report, P does not have capacity to consent to contraception or to consent to sex.

A social worker had written a witness statement (and was in court as a witness in the afternoon, which I was sadly not able to attend) saying that the recommended placement was the best of the options available.  P would live in a self-contained unit and would not share facilities with any other residents.  All the residents at the placement have at least one-to-one care at all times.  This means that both P and one of the men would have to evade their carers at the same time for a sexual encounter to take place.

What I learnt from the hearing

I was particularly interested to attend a court hearing because it is an experience that I have missed out on due to the pandemic. Normally, during first year of our social work course, we get the opportunity to visit courts and observe some hearings, but obviously this has not been possible. 

However, we have been lucky enough to have District Judge Powell take the time to speak to us and answer our questions.  One of the things she explained to us was how you address judges of different levels. I noticed straight away these address  terms being used, with Mr Justice Hayden (as a High Court judge) being referred to as “My Lord” or “Your Lordship” throughout. I found it interesting to see how the addressing of a judge works in practice, because when District Judge Powell told us about it  I could not picture how, or why, you would use this formal title more than once or twice. I learnt that the term actually replaces “you” when addressing them. I was pleased to hear other people use these terms before having to use them myself. 

Also, I was amazed that – even via video conferencing – you could still feel the power that Mr Justice Hayden possessed, yet despite this he was still incredibly compassionate. It did make me think how much more powerful High Court Judges if you were stood in front of them in a court room. 

In my lectures we have been learning about the Mental Capacity Act 2005 so it was useful to see it being applied in practice. I was impressed by how thorough everything was and how every little detail is picked apart to make sure the right outcome was decided for P. It was very interesting to see how Mr Justice Hayden was considering questions beyond the direct question that was being asked of him. The case was to decide whether she could have an IUD and move to a different, less restrictive, home. Mr Justice Hayden considered questions around her capacity to consent to sexual relations and the implications that having a coil inserted would have for her. 

Having heard Mr Justice Hayden’s line of questioning in the morning, I thought he would not approve the order that it was in her best interests to have contraception and  the move to this new home.  I thought that if P does not have the capacity to consent to sex, then putting her in a position where it was considered necessary for her to have birth control “just in case” left her vulnerable to being raped. 

However, I learnt from Celia Kitzinger by the end of the day that the ruling went the other way.  This was partly because  Mr Justice Hayden found that the presumption of capacity in relation to sexual relations had not been rebutted.  He authorised P’s contraception and move to the new placement as the least restrictive option. From this I learnt that promoting P’s autonomy is an important value in the Court of Protection.

Jasmine Thomson is a first-year social work student at Bournemouth University.

Photo by Raimond Klavins on Unsplash

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