Alex RKPoole J is rapidly becoming the specialist sexual capacity judge at the Court of Protection. Following his decisions in Hull City Council v KF [2022] EWCOP 33, and Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, we now have Re EE (Capacity: Contraception and Conception) [2024] EWCOP 5. The case concerned a 31 year old woman who wanted to become pregnant and have a baby; her capacity to engage in sexual relations, to decide about contact with others, and to make decisions about contraception, were all in issue and required the court’s determination.
The parties agreed that EE had capacity to make decisions to engage in sexual relations and lacked capacity to make decisions about contact with others. The applicant local authority submits that EE lacks capacity to “make decisions about whether to use contraception.” The Official Solicitor submitted that EE has capacity to make “decisions about contraception.” As Poole J noted at paragraph 3:
The fact that the parties used different formulations for the matter in respect of which the court must evaluate P’s capacity to make a decision for herself concerning contraception, points to an important issue for the court to address, namely what is the matter in relation to contraception which EE has to decide.
Sexual relations and contact
Poole J’s analysis of the position is sufficiently nuanced and detailed that it requires to be set out in full.
First, as regards sexual relations:
24. Dr Todd has advised, and the parties agree, that EE has capacity to make decisions to engage in sexual relations. I am not bound so to find. I have regard to the legal framework set out earlier in this judgment and, crucially, the authority of JB. Baker LJ’s formulation of the information relevant to a decision to engage in sexual relations included “that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant.” He did not include information about the possible consequences to P, or, if P is male, to P’s female sexual partner, of becoming pregnant to P or the possible risks to the baby if conceived. However, the “specific factual context”, including the existence of “serious or grave consequences” of a decision, or not making the decision, needs to be considered and Baker LJ did not purport to give an exhaustive or exclusive list of relevant information that would apply in every case. If a woman of child-bearing age were to have a high risk of suffering serious or grave complications of pregnancy of the kind to which P in DDwas vulnerable, then it is arguable that the information relevant to her decisions to engage in sexual relations would include not only the prospect of her becoming pregnant but also that consequently she and her baby would be at a high risk of grave harm. These kinds of reasonably foreseeable consequences were not addressed by Lord Stephens in JB, but he was concerned with a man not a woman, and in any event it would not have been possible for him to have addressed every kind of information that would be relevant to every potentially incapacitous person’s decisions to engage in sexual relations. Instead, he set down the general requirement for the court to consider the specific factual context of each case.
25. However, having noted that it is at least arguable that in some cases where there are serious or grave risks of harm consequent on a pregnancy, the information relevant to engagement in sexual relations might include those risks, it is right to note that Lord Stephens warned that there were “practical limits” on what P should be expected to envisage as the “reasonably foreseeable consequences” of a decision or failing to make a decision. A line must be drawn so as to avoid imposing too high a requirement on persons who may potentially lack capacity to make a particular decision.
26. In the present case, I consider that in the context of decision-making about engaging in sexual relations it would exceed the practical limits to require EE to envisage the risks to her or her baby should she become pregnant following intercourse. Firstly, the evidence does not establish that she or her baby would be at serious or grave risk of harm were she to become pregnant. The evidence suggests that there would be some risks to her, but they are not of a direct and severe kind. I address this more fully below. Secondly, many women will put their physical or mental health at risk by becoming pregnant. Some may consider those risks before engaging in sexual relations, some might not. To require EE to understand and weigh or use information about risks to her health during pregnancy or labour, in particular risks which were not grave, would stray beyond the practical limits to which Lord Stephens referred and would set the bar too high. Thirdly, and similarly, many women will engage in sexual relations with a view to conceiving when there is a risk that their baby will suffer harm in utero or be born with a congenital disability. Again, some women will consider those risks in advance of engaging in sexual relations, some will not: the bar should not be set too high for EE. Finally, these matters – risks consequent to pregnancy – have not featured significantly or at all in the case law regarding the information relevant to decisions about sexual relations including older authorities about capacity to consent to sexual relations. I proceed on the basis that it would only be in cases where there was a clearly identified, high risk of grave harm consequent on pregnancy or childbirth, that information about that might have to be envisaged by P and be included in the list of relevant information.
27. I have found it necessary to address the question of information relevant to decisions to engage in sexual relations, notwithstanding the agreement of the parties as to EE’s capacity in that respect, because it is necessary to consider the consistency between the determinations of capacity I have to make.
On the facts of EE’s case, Poole J considered that:
28. In my judgment the information relevant to EE’s decisions to engage in sexual relations is that set out by Baker LJ in JB and I do not consider that any further relevant information should be added in this case. Dr Todd’s written reports correctly address EE’s ability to understand, retain, and weigh or use the relevant information. EE’s responses in interviews with Dr Todd are conspicuous for the detailed understanding and ability to weigh and use information that she demonstrates. As Dr Todd said to the court, EE offered the information she knew and her opinions about decision making, largely unprompted. I have no hesitation in finding that she has capacity to decide to engage in sexual relations as Dr Todd and the parties have agreed.
Second, as regards contact, the primary reason EE lacked capacity regarding contact was her inability to use or weigh the risks that others posed to her. Poole J noted that he should comment briefly on whether the agreed positions regarding capacity to make decisions about sexual relations and about contact with others were consistent with each other, especially in light of his observation in Hull City Council v KF that it was difficult to see how a person who lacked capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person. Poole J continued:
30. […] However, in PN […] I was concerned with determining capacity to engage in sexual relations generally, not with a specific person and I found that PN lacked capacity to make decisions about contact with others but had capacity to engage in sexual relations with others. For the reasons set out in that judgment, in particular at [28], I did not consider those determinations to be inconsistent. Likewise, in the present case, I am content to find that EE lacks capacity to decide on contact with others, specifically those with whom she is not already familiar, but has capacity to decide to engage in sexual relations with others. EE’s carers have devised and adopted a care plan which has been based on those positions in relation to capacity. It follows an approach of the kind set out by Baker J in A Local Authority v TZ [2014] EWHC 973 (COP) and discussed in his oral evidence by Dr Todd when he referred to “positive risk taking”. The approach involves encouraging EE to consider the risks and benefits of meeting any particular person and the form of contact with them but ultimately to make best interest decisions to protect her from harm, or the risk of harm from contact with a person with whom she is unfamiliar, and to allow for interventions by a carer. However, once she has familiarity with a person and wishes to have sexual relations with them, her capacity to make that decision would have to be respected. The fact that JB had been found to lack capacity to make decisions relating to contact with others did not preclude the Court of Appeal and the Supreme Court from considering whether he lacked capacity to engage in sexual relations. The courts were clearly prepared, in principle, to find that he had capacity to engage in sexual relations notwithstanding that he lacked capacity to decide to have contact with others.
Contraception and conception
When the expert was asked about contraception, he had questions put to him as if “contraception” included two questions: (1) deciding to conceive; and (2) to make decisions in relation to contraception. Poole J therefore considered “whether it is appropriate to consider EE’s capacity to decide to conceive or to become pregnant alongside decisions about her capacity to make decisions about engaging in sexual relations and the use of contraception” (paragraph 31). At paragraph 34 he asked himself:
Ought the court to be even considering the question of EE’s capacity to make decisions about conception given its determination that EE has capacity to decide to engage in sexual relations and that it will determine her capacity to decide on the use of contraception? In JB no distinction was made between decisions about engaging in sexual relations with a view to trying to conceive, and decisions about sexual relations which are not for any reproductive purpose. It is sufficient for P to understand, retain, and weigh or use information that sex might result in pregnancy. There was no suggestion in JB that the relevant information concerning pregnancy differs according to whether P and their consenting sexual partner wish to have sex without contraception. Furthermore, the non-exclusive list of information relevant to decisions to engage in sexual relations set out in JB does not include the risks consequent on pregnancy or childbirth to P or, if P is a man, to a woman with whom P has sex, or to a conceived child. Such information was not included within the “practical limits” of what needs to be envisaged. In the present case I have found that those matters were not part of the information relevant to EE’s decision to engage in sexual relations. The freedom to make decisions about conceiving and having children, subject to the unavoidable restrictions imposed by biology, is a fundamental part of anyone’s Article 8 right to respect for their private and family life and, in my judgment, it would be irrational, unnecessary, and an unjustified interference with EE’s Article 8 rights, to find that she has no capacity to make decisions about conception on the grounds that she cannot understand, retain, or weigh or use that same information. Dr Todd and the Applicant have, I believe, fallen into that error.
35. Clearly there is some overlap between decisions about contraception and decisions about conception, but they are different. Without needing to decide the matter, there may be cases, for example where P wishes to undergo IVF, in which P’s capacity to make a decision about conception has to be determined. But in most cases, including EE’s case, those specific considerations will not apply. EE has capacity to engage in sexual relations and that means she has capacity to engage in sexual relations with a view to becoming pregnant. I shall also consider her capacity to make decisions about the use of contraception. In the circumstances, no separate consideration of capacity to decide about conceiving or conception is required or justified.
Poole J therefore found that it was not necessary or appropriate to frame the matter for decision as being about “conceiving/getting pregnant” as Dr Todd expressed it, or about conception at all. Rather:
36. […] In relation to the issue of contraception, in my judgment the appropriate formulation of “the matter” in respect of which the court must evaluate whether EE is unable to make a decision for herself, is “the use of contraception”.
As to contraception, Poole J reminded himself that in order to identify the information relevant to the decision in question, he had to consider the particular factual context within which EE would make such decisions. She was currently prescribed anti-anxiety medication, sleeping tablets, and an anti-psychotic. The probable advice to EE would be to continue with each of these during pregnancy. EE had said that that is what she would do. She had been compliant with her medication for some time and had not suffered a psychotic episode for a while. The medical evidence was that, if EE were to continue her medication throughout pregnancy, then at birth the baby might initially have to be cared for in the neonatal intensive care unit to monitor for signs of withdrawal from the anti-psychotic medication. Poole J noted (at paragraph 37) that there was no evidence that EE did not understand this information or was unable to weigh or use it.
Poole J noted that Dr Todd had concluded that “[EE] does not have the mental capacity to make an informed decision whether to use contraception to prevent the risks associated with pregnancy to her mental health and the risks to her baby of a mental health relapse and the use of psychotropic medication during pregnancy.” At paragraph 3.2 of the report, he explained his reasoning:
She stated that it is her right to have a child and all her physical and mental problems will go away once she has a child. This strongly held belief, in combination with her lack of insight into her care and support needs, leads her to be unable to use and weigh the risks to her mental health of becoming pregnant and being a new mother and the impact of the baby on her mental health and the risks to her baby of a mental health relapse and the use of psychotropic medication during pregnancy. In terms of pregnancy and the risks to her mental health, EE believed that she would be able to manage regardless of any impact on her mental health. In terms of pregnancy and the risks to her baby, she believed her mental health would have no impact on the child and any risks caused by psychotropic medication were not significant and, even in the worst case, she would be able to manage the impact on the baby.
In his oral evidence, Dr Todd focused on the risk of EE suffering from a deterioration in her mental health or psychological state due to the combination of her autism and learning disability, and the stress of pregnancy and/or birth. However, as Poole J noted: “[h]e had not specifically addressed that issue in his written evidence. More importantly, he had not addressed it with EE, so that there was a lack of evidence before me of what she might have said about the risk of a general deterioration in her mental or psychological condition,” such that:
40. I have virtually no evidence of the likelihood, nature, or severity of any deterioration in her mental or psychological state that EE might suffer as a consequent of pregnancy. Dr Alex does not comment on those matters in his report, Dr Todd does not give such evidence in his written reports, and he did not provide any specific evidence at the hearing, only referring to having dealt with a patient, whom I did not understand was pregnant at the material time, who had suffered what he called “an autistic meltdown”. I do not doubt that as a woman with autism and learning disability, EE will have some difficulties adapting to the physical and emotional changes caused by pregnancy, but I have no evidence beyond Dr Todd’s implication, that EE is especially vulnerable to suffering a severe crisis of the kind he described should she become pregnant.
As Poole J identified, a relevant aspect of the case that EE had previously been pregnant, and that there was evidence that she experienced an autistic “meltdown” or other deterioration, although he had been given very little information about her previous pregnancy save that it ended with a termination. He continued (at paragraph 41): “[it] cannot be known exactly what support EE would have were she to find that a pregnancy was exacerbating her mental or psychological health. The father might or might not support her, but she would be highly likely to have the support of care staff and therapists.” Further, and whilst it was clearly material to Dr Todd’s oral evidence about EE’s capacity to make decisions about contraception, that he had found (and no-one disputed) that EE lacked capacity to make decisions about her care, and that, “his view appeared to be that because she lacks capacity to make decisions about care, EE cannot understand, or use or weigh, information about her care needs in the event of a deterioration in her mental or psychological health during pregnancy.” However, Poole J did not accept that reasoning: “Dr Todd’s interview with EE about care and support focused on her independence and ability to live without day to day support and care, not on medical treatment or support in the particular circumstances of a crisis or deterioration in her mental health or psychological condition caused by pregnancy” (paragraph 43).
As Poole J identified:
43. There are reasons to avoid setting the bar too high for capacity to make decisions about the use of contraception. As noted, at [75] of his judgment in JB, Lord Stephens adopted the caution expressed in In re M (An Adult) (Capacity: Consent to Sexual Relations) [2014] EWCA Civ 37, namely that the notional decision-making process attributed to P should not “become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity”. Daily, in GP surgeries and clinics, women make decisions about contraception without considering the risks to them or to the health of their baby if they were to get pregnant. The risk of becoming pregnant following intercourse is a core piece of relevant information, but not all the many and varied risks which may be consequent on becoming pregnant. Some may envisage all manner of risks, others will not do so.
44. Nevertheless, for some women, there may be certain risks arising from pregnancy that would be highly relevant to their decisions about the use of contraception. Following paragraph 4.19 of the Code of Practice (above), and Cobb J’s judgment in DD (above), serious or grave consequences of pregnancy to which P would be particularly vulnerable, might be considered to be part of the relevant information. In my judgment, this approach would be consistent with the approach to decision-making about engagement in sexual relations set out by Lord Stephens in JB as I have tried to describe earlier in this judgment. The information relevant to a decision is dependent on the specific factual context of each case but must be kept within practical limits so that the bar is not set too high and the requirements on a person who might lack capacity are not divorced from the realities of decision-making for capacitous persons.
45. More remote consequences of pregnancy, labour and birth, such as the impact on the child of being born to a mother with mental health problems, physical illness, or disability, are not part of the relevant information (for a number of reasons including that they are not within practical limits or, as it was put by Bodey J in A Local Authority v Mrs A and Mr A (above) they are not proximate medical considerations).
Therefore, considering the evidence in the case, the specific factual context in which EE might make decisions about contraception, including whether to use contraception at all, and the need to respect practical limits when determining what reasonably foreseeable consequences should be included, Poole J decided to adopt the list of relevant information given by Bodey J in A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam), with no additions or subtractions, i.e. (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each.
Poole J was also at pains to explain why he had excluded certain information, at paragraph 47:
a.. The risks and benefits to EE of continuing with anti-psychotic and other medication during pregnancy. I am not persuaded that serious or grave consequences to EE are brought into consideration. Moreover, I believe that these risks and benefits are not sufficiently proximate to the decision about contraception. The risk of thromboembolic disease which was pertinent to decision making in DD would arise directly from a pregnancy. Here, the risks of continuing or discontinuing medication are a secondary consequence of the pregnancy – they arise from a decision that has to be made in the event of the pregnancy. They are therefore further removed from the decision about contraception. If I am wrong and should have included this information, then I am quite satisfied that EE can understand, retain, and weigh or use the information. Dr Todd focused his discussions with EE much more on the potential impact of continuing the medication on any baby she might carry in the future, rather than on the impact to EE herself of ceasing medication, but he went through Dr Alex’s report with her and EE appears to have aligned herself with Dr Alex’s evidence and his opinion that EE ought to continue taking her current medication during any future pregnancy. I am satisfied that she did so having weighed and used the information provided. To underline my conclusion, EE’s ability to weigh and use information in relation to the medical issues regarding the use of different forms of contraception shows her functional abilities in these areas.
b. The risks of a deterioration in EE’s mental health or psychological condition due to pregnancy or labour. There is no, or no sufficient, evidence before me that this is a serious or grave consequence in the case of EE. I would accept that in principle serious or grave risks might be included as reasonably foreseeable consequences of deciding not to use contraception, but in the specific context of this case, the evidence does not justify treating these risks as serious or grave or as matters which any woman in EE’s position would have to consider when making decisions about contraception. Aside from Dr Todd’s comments during his oral evidence about the risk of “autistic meltdown”, which were not backed up by any references or reliable experience, only by an anecdotal reference to a single case that did not relate to a pregnancy, no other evidence was provided that was relevant to EE’s case. If, contrary to my determination, this should be regarded as relevant information then I would need to consider allowing for a further interview with EE in order to afford her an opportunity to address it and thereby to give the court evidence as to her ability to understand, retain, and weigh or use that information. This information has not been discussed with her. I do not need to decide whether I would indeed allow for further evidence to be adduced but I note that the onus is on the Applicant to establish that EE lacks capacity. Whilst the Court of Protection adopts an inquisitorial approach, it does not follow that if, after sufficient time has been given to gather relevant evidence, a party is unable to establish a case, then proceedings must be adjourned to enable more evidence to be obtained.
c. The potential effects on EE’s baby of her continuing to take anti-psychotic and her other current medication during any pregnancy. Dr Alex’s evidence is that,
“Use of aripiprazole [which EE takes] and other antipsychotics throughout pregnancy or near delivery has been associated with withdrawal symptoms in the neonate and/or poor neonatal adaptation syndrome (PNAS). These symptoms are likely to be more severe in infants exposed in utero to more than one CNS acting drug. Delivery should therefore be planned in a unit with neonatal intensive care facilities.”
Dr Alex has not said that withdrawal symptoms or PNAS would be a severe or grave condition for the baby. Care must be taken not to insist on P needing to envisage a wider range of risks than a capacitous woman might be expected to envisage, including women taking prescribed or other medication which might affect a baby if they became pregnant.
d. The effect of EE’s mental or psychological health on her newborn baby, the difficulties she might have caring for a baby or coping with the peri-natal period, or the prospects of a child being made the subject of protective orders by the court. Those issues are not “proximate medical issues” and are not within “practical limits” of what needs to be envisaged (JB at [75]).
Having regard to the relevant information, Poole J had “no hesitation” in finding that EE had capacity to make decisions about the use of contraception.
Poole J, who had met with EE prior to the hearing, agreed with EE that he would write a letter to her explaining his decision. He noted that:
50. […] With respect to her, although she has thought the matter through, many would think it unwise for her to try to conceive, but it is not for me to advise her, and it is certainly not the role of the Court of Protection to intervene in the autonomous decision-making of an adult who has capacity to make decisions about sex or the use of contraception, however unwise the court may consider the proposed decisions are. Many capacitous people make unwise decisions about sex and contraception, sometimes with awful consequences for themselves and others, but however strong is the impulse to protect, the follies of the capacitous are not the business of the Court of Protection.
Comment
As might be expected, the ramifications of the decision in JB continue to make themselves felt, especially as to the vital importance of focusing on the information that is actually relevant to the decision in question. This, in turn, involves the recognition that determination of mental capacity has a clear element of social construction to it. For the avoidance of doubt, I am not suggesting by this that this means that it is a concept that lacks validity, but rather that it is a concept that requires to be considered in a transparent fashion in exactly the way that Poole J has done here.
Poole J’s analysis of the interrelationship between conception and contraception is also very helpful in terms of clarifying a matter which can otherwise cause undue complication, his clear-eyed analysis of the need for actual evidence of risk if such risk is to be asserted to be relevant both made all the difference on the facts of the case and is of wider relevance.
