On caesareans and sterilisations

Now that the brouhaha relating to the forced caesarean case has abated, it is time to step back a little and consider the wider picture on mental capacity in UK law. And yes, the wider picture is no Normal Rockwell painting.

A major criticism of the forced caesarean case is that the views and wishes of the mother are not discussed in the judgment. The second other major criticism is that the human rights of the mother are also not discussed in the judgment.

As a comparison, consider the incapacitated sterilisation case. The views and wishes of the adult male are discussed in great length in the judgment: the adult male, even though incapacitated, clearly wishes to undergo the sterilisation. The human rights of the incapacitated male are not discussed in the judgment.

In both cases, the fundamental legal issue is to consider the views, opinions and wishes of the person, in order to achieve the protection of his or her human rights. References to human rights have become trite. However, this point is crucial. What is meant by human rights? Does that reference cover bodily integrity (protected under Art. 8 ECHR), or the right to procreate (protected in conjunction with the right to marry under Art. 12 ECHR)?

The wider picture is wider. The wider picture deals with the right to recognition before the law under Art. 12 CRPD. The Draft General Comment on Art. 12 CRPD by the CRPD Committee states the following, in paras. 12 and 13:

12.       Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of an individual, which naturally vary among individuals and may be different for a given individual depending on many factors, including environmental and social factors. Article 12 does not permit perceived or actual deficits in mental capacity to be used as justification for denying legal capacity.

13.       In most of the state reports the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where an individual is thought to have impaired decision-making skills, often because of a cognitive or psychosocial disability, her legal capacity to make a particular decision is consequentially removed. This can be done simply based on the diagnosis of a disability (status approach), or where an individual makes a decision that is thought to have negative consequences (outcome approach), or where an individual’s decision-making skills are thought to be deficient (functional approach). In all these approaches, an individual’s disability and or decision-making skills are accepted as a legitimate basis for denying her legal capacity and lowering her status as a person before the law. Article 12 does not permit this discriminatory denial of legal capacity and instead requires that support be provided for the exercise of legal capacity.

In light of the above, rather than focusing on any particular criticisms of these cases, it is urgent to take issue with two things in the Mental Capacity Act:

1. That a person may be regarded as lacking decision-making capacity, which then is used to deny him or her legal capacity

2. That the consideration of best interests is carried out without any reference to human rights

The wider picture then is wider.

The first and obvious point is to introduce a Disability Rights Act, which will incorporate the CRPD in UK law.

The second point is to amend the Mental Capacity Act.


Some Contrarian Thoughts on Re DE [2013] EWHC 2562 (Fam)

This is my first blog post and I have been moved to write it by an issue I deeply care about: non-consensual sterilisation for persons with intellectual disability.

Re De is a judgment I do not agree with. I will not punch about whether DE had capacity or not. The crux of the case relates to best interests.

Under English law, non-consensual sterilisation, of either male, or female incapacitated person, has to be in the person’s best interests.  

The analysis of best interests in Re De is problematic.

From a human rights perspective, the judgment mentions Art. 8 of the ECHR and Arts. 23 and 26 of the CRPD. Sterilisation is seen as an infringement of the right to respect of private and family life under Art. 8 of the ECHR. The mention of the CRPD rights, not having been incorporated in English Law, is of no binding force. 

However, an analysis of non-consensual sterilisation only on the basis of Art. 8, or the extensive case law cited and followed in Re DE, does not give the full picture of what is at stake here, in human rights law.

In Issues in the Human Rights Protection of Intellectually Disabled Persons (Ashgate: 2010, 184-191) I have argued that non-consensual sterilisation undercuts a very different, and often very neglected right under the ECHR. Art. 12 of the ECHR protects the right to marry and found a family.  Insofar as sterilisation is concerned, Art. 12 has to be regarded as lex specialis in relation to any other interferences with bodily integrity, which are caught by Art. 8. When a non-consensual sterilisation is authorised, Art. 12, in the part that relates to founding a family, is annihilated. It is for this reason, under human rights law, that non-consensual sterilisation is inherently problematic.

The problem with non-consensual sterilisation has to do with proportionality of interference. Art. 12 of the ECHR is a qualified right, which can be exercised according to the national laws governing the exercise of this right. This means that the right of Art. 12 can be interfered with, in accordance with the law, for a legitimate aim and if the intensity of the interference is proportionate to the legitimate aim to be achieved.

All things being equal therefore, if the intensity of the interference is so high as to extinguish the right, then the legitimate aim to be achieved has to be very high indeed. (My personal view is that the interference can never abolish a human right). Since non-consensual sterilisation extinguishes the right to marry and found a family, then the reasons for authorising it have to be grave and serious. This is were the distinction between therapeutic and non-therapeutic, non-consensual sterilisation becomes crucial. Non-therapeutic, non-consensual sterilisation can never be justified under human rights law.

Ultimately, Re De is disappointing because it does not offer a convincing analysis of the distress that becoming a father would cause DE. Short of jumping off a cliff or developing serious mental illness, I cannot subscribe to an inflation of psychological distress which may justify non-consensual sterilisation in the best interests of DE.

But, I can hear you argue, DE actually does not want to become a father again. He has no wish to found a family. Aren’t you being paternalistic?

I can understand this argument, in human rights terms, as a conflict of rights. Authorising the non-consensual sterilisation for DE will satisfy his right to respect for his private and family life under Art. 8 of the ECHR (continuing his sexual relationship without the fear of becoming a father again) to the detriment of his right to marry and found a family under Art. 12.

My position, when faced with competing rights, is to strike a balance between the two, in a way which affords as much protection as possible to both. For me, it is clear that DE’s fertility should be safeguarded, even if this may cause him distress in his private life.

Persons with intellectual disability are not immutable or static. Like any person, their wishes and personality change and grow. DE does not want to be a father again, now. What about the future? Ask yourselves then, what safeguards DE’s best interests: authorising a non-consensual sterilisation in the absence of grave and imminent medical harm for his convenience and the convenience of others around him, or preserving his fertility in order to safeguard his right to marry and found a family, should DE form such a wish in the future?