Local Authority A v ZZ
[2023] EWCOP 61
EE (Capacity: Contraception and Conception), Re
8 February 2024
[2024] EWCOP 5
Court of Protection
EE has mental health challenges but the court decided she's smart enough to decide if she wants to have sex and use birth control. She's not smart enough to decide who she can talk to, though, because she has trouble staying safe. The judges made sure not to set the bar too high for her to make these decisions. She can decide if she wants to have a baby or not (because that is included in her ability to decide about sex and birth control).
Key Facts
- •EE is a 31-year-old woman with Tuberous Sclerosis, autistic spectrum disorder, mild learning disability, emotionally unstable personality disorder, and recurrent psychotic disorder.
- •EE wants to become pregnant and have a baby.
- •The court needs to determine EE's capacity to make decisions about sexual relations, contact with others, and contraception.
- •Parties agree EE has capacity for sexual relations and lacks capacity for contact decisions.
- •Disagreement exists on EE's capacity regarding contraception; Applicant says she lacks capacity, Official Solicitor says she has capacity.
- •EE has a history of risk-taking behavior, mental health challenges, and non-compliance with treatment.
- •Expert evidence was provided by Dr. Todd (Clinical Psychologist) and Dr. Alex (Consultant Psychiatrist).
- •EE has previously expressed a wish to have children and has had a previous pregnancy terminated.
Legal Principles
Mental Capacity Act 2005 (MCA 2005) sections 1-3: Establishes the test for capacity, including the presumption of capacity and the burden of proof.
Mental Capacity Act 2005
A Local Authority v JB [2021] UKSC 52: Defines the test for capacity to engage in sexual relations; focuses on capacity to make the decision, not consent to the act.
A Local Authority v JB
LBX v K [2013] EWHC 3230 (Fam): Provides guidance on information relevant to contact decisions.
LBX v K
A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam): Addresses the approach to determining capacity for contraceptive treatment; emphasizes avoiding blurring capacity and best interests.
A Local Authority v Mrs A and Mr A
Mental Health Trust and ors v DD (No.2) [2014] EWCOP 13: Adds medical risks associated with pregnancy to the relevant information for contraception decisions.
Mental Health Trust and ors v DD (No.2)
Outcomes
EE has capacity to make decisions about engaging in sexual relations.
EE demonstrates understanding, retention, and ability to weigh information relevant to sexual relations, as outlined by Baker LJ in JB.
EE lacks capacity to make decisions about contact with others (unfamiliar individuals).
EE's inability to weigh risks associated with unfamiliar contacts demonstrates lack of capacity to use relevant information as per LBX.
EE has capacity to make decisions about the use of contraception.
EE demonstrates understanding, retention, and ability to weigh information regarding contraception, meeting the criteria set out by Bodey J in A Local Authority v Mrs A and Mr A, without adding further considerations.