Court of Protection ruling affirms individual autonomy in decision-making on contraception and conception

Citation: [2024] EWCOP 5
Judgment on


The Court of Protection ruling in “Re EE (Capacity: Contraception and Conception)” addresses the decision-making capacity of an individual with a genetic condition and various mental health issues. Central to the judgment are EE’s capacities relating to sexual relations, contact with others, and use of contraception. The case analysed the interplay of mental capacity and the autonomy of the individual against the backdrop of the Mental Capacity Act 2005, pertinent case law, and psychological evaluations.

Key Facts

EE, a 31-year-old woman with a diagnosis of Tuberous Sclerosis, autistic spectrum disorder with mild learning disability, emotionally unstable personality disorder, and recurrent psychotic disorder, expressed a desire to become pregnant. Her capacity to make decisions about sexual relations, contact with others, and contraception became the crux of the legal issue. The court had to consider the potential risks associated with her health condition and the impact on her and any potential offspring.

The case hinges on the interpretation of sections 1 to 3 of the Mental Capacity Act 2005 (MCA 2005), alongside principles established in preceding cases such as A Local Authority v JB, LBX v K, and A Local Authority v Mrs A and Mr A. The key points from these cases are:

  • Presumed capacity: There is an assumption of capacity unless established otherwise, placing the burden on the applicant to prove a lack of capacity.
  • Decision-specific capacity: The capacity is evaluated in relation to specific decisions, rather than globally.
  • Relevant information: To make a decision, the individual must understand the relevant information and the reasonably foreseeable consequences of the decision.

The court emphasized the necessity to avoid setting an unreasonably high bar for EE to qualify as having the capacity to make the pertinent decisions, which could interfere with personal autonomy.


The court made several determinations:

  • Sexual Relations: EE has the capacity to make decisions to engage in sexual relations.
  • Contact: EE lacks the capacity to make decisions about contact with those who are unfamiliar to her.
  • Contraception: EE has the capacity to make decisions concerning the use of contraception.

EE’s wish to conceive was acknowledged; however, there was no distinction made between sexual relations intended for reproduction and those that are not. The judgment reflects that the autonomy to engage in sex or the use of contraception is to be respected for an adult who has the capacity to make these decisions, even if others may view those decisions as unwise.


The judgment of Mr Justice Poole in “Re EE (Capacity: Contraception and Conception)” [2024] EWCOP 5 elucidates a nuanced approach to capacity determinations within the Court of Protection. It demonstrates the balancing act between protecting individuals with potentially compromised decision-making abilities and respecting their autonomy. The outcome of this case reinforces that decision-making capacities are decision-specific and must reflect a practical understanding of what relevant information a person of full capacity would consider. This judgment upholds that the determination of capacity must not only rely on the interpretative guidance of precedent but also the specific factual context of each case.