The Hospital Trust v V & Ors

Miss V is 21 years old. She has a severe learning disability. In late 2015, she conceived a child, in circumstances which in all probability amounted to rape. The perpetrator of the sexual assault remains unknown; neither Miss V nor her family can shed light on the circumstances in which the assault occurred. In 2016, she gave birth to a baby boy who is now in foster care.

Application was made to the Court of Protection in 2016 for best interests’ determinations relevant to ante-natal care, and the delivery of the baby. The issues before the Court now are:

All parties share a strong common objective to protect Miss V from further harm, and specifically from sexual exploitation and pregnancy. However, they differ as to the means by which this can, or should, be achieved:

The hearing has been conducted in public.

Miss V is one of nine children of Mr and Mrs W. They are nationals of another European state (which I do not propose to name, for fear that it may assist the identification of Miss V and her family); Mrs W, Miss V and a few of Miss V’s siblings have lived in the UK for approximately four years. Mr W, from whom for a period Mrs W was estranged, has now reconciled with his wife, and he joined her in this country about one year ago. Four or five of Miss V’s siblings now live in the UK.

Miss V suffers from a severe learning disability, with developmental delay, a cerebral palsy (indicated by some reported incontinence, modestly abnormal gait and speech impediment) and epilepsy. Her receptive and expressive language skills are significantly delayed. She has an ‘understanding’ age of about 3-5 years; she can say only a few simple words and phrases in her native language, and even less in English. This complex range of medical conditions is attributable to an incident of significant trauma (a road traffic accident) which she suffered when she was three years old; this caused severe brain injury. She apparently had no schooling in her home country, but accessed a specialist school on her arrival to England for about a year; this was a mixed experience for her, as she was allegedly beaten and bullied by other pupils. For all her life she has been socially and emotionally extremely vulnerable, but is, paradoxically “very sociable” and “likes to go out to the park”; she is also described as capable of being “over-familiar” with adults, as she was with one of the assessing psychiatrists undertaking an assessment.

In 2016, Miss V came to the attention of the Health Authority and Local Authority, having presented to her general practitioner as 28 weeks pregnant; neither she nor her mother were apparently aware of her condition. Multi-disciplinary resources were urgently galvanised to deliver a co-ordinated package of care to support Miss V through the final trimester of her pregnancy and delivery of the baby. The Health Authority sought the authority of the Court of Protection to arrange the delivery of the baby by caesarean section; Newton J made the relevant order in August 2016, and the baby was born on the following day.

The father of the baby is unknown. The circumstances of the conception are undetermined, although it is believed that the father may be a friend of one of Miss V’s brothers, visiting from their mutual home state. DNA testing has ruled out any family member. There is professional agreement that Miss V did not have the capacity to consent to sexual intercourse.

Miss V was wholly bewildered by the experiences of pregnancy and confinement, and immensely distressed when her baby was removed from her care, pursuant to emergency orders obtained under Part IV Children Act 1989. Professionals speak of an extreme reaction to these events: a “significant physical and psychological trauma” (per her obstetrician, Dr. S) is amplified by the social worker who described Miss V as “agitated”, swearing and yelling, and pushing at her mother “out of frustration… pointing to her stomach and crying.” In her evidence before me, the social worker described the situation thus:

“[Miss V] became pregnant last year, and she has no understanding as to who by, or how, and she found it difficult to have medical interventions, and going through the later stages of the pregnancy she wanted the baby out. I observed her shouting pointing at her stomach; she did not understand what happened to her body; it was extremely difficult for professionals to get bloods and blood pressure from her. Any medical intervention she found traumatising and she was scared; a lot of intensive support was offered by the health professionals to help to prepare her for the birth of the baby. Though physically she healed well after the baby, the removal of the baby had a devastating effect on her emotional and psychological welfare; she could not understand where the baby was and was constantly asking for her baby; she was physically lashing out at her mother; she was self-harming; not sleeping; not eating; throwing herself on the floor; the community care officer took her to the GP and she got anti-depressants; it has a long effect on her.

After the contacts, she would be extremely distressed. The parents could not calm or reassure her; she physically became very ill complaining of pains in her body and feverish. She lost interest in the outside world, and became clingy to her mother. No matter who visited her, she only cried and asked for her baby. After several months, there were times when she smiled with her mother, and engage with outside activities but only with her mother. She became very fearful of the world”.

She added:

“I have been working with adults [with learning disabilities] for 2½ years, I have not seen such a distressing scene as this. I have been a children’s social worker for 18 years, and I have seen many, many, parents lose their children or have them placed in care. Some of them [the parents] have learning difficulties; I have never seen this extreme level of distress before”.

Following the delivery of the baby, professional attention swiftly turned to the formulation of a plan to prevent a recurrence of the pregnancy. Although it is believed that Miss V probably became pregnant while in her home, following an assault by a visitor, the plan requires that Miss V is never unaccompanied when out of her home, and never at any time in the care of unknown and unapproved persons. The success of the plan, as a whole, depends heavily on high levels of co-operation between Mr and Mrs W and the Local Authority, monitored by announced and unannounced visits by professionals. The community matron has undertaken some focused work with Miss V on sexual education and self-protection; Miss V appears to have been receptive to this.

As an adjunct to this plan, the Health Authority initially proposed (and indeed made formal application to the court on 28 September 2016 in this regard) that Miss V be sterilised under general anaesthetic. This application is no longer pursued.

The safeguarding plan appears to have been broadly successful. The Local Authority have recognised that in difficult circumstances the family have adhered, or sought to adhere, to the plan. They are a close family, which functions well together, and they have generally co-operated with a high level of intervention from social and health care workers. They are willing to accept advice, and are not defensive.

However, there have been a number of lapses of the safeguarding plan over the last 12 months. These lapses are admitted by the parents. They are as follows:

The social worker reports a recent conversation (10.10.17) with Miss V’s parents thus:

“[The parents] informed me that they constantly remind Miss V she was not able to leave the house without them and that she was not allowed to go to the aunt’s house, who lives at the bottom of the street, without them. [Mr W] stated that they normally lock the front door and take the key out of the door to prevent [Miss V] from leaving the house, as [Miss V] will try to leave when other family members go out or when her cat is outside, she wants to go and find her cat. [Miss V’s mother] stated that is what she was probably doing today… When she does not find her cat, she will go out with a plate of food looking for the cat. … [Mrs W] stated she had gone upstairs to the bathroom and [Miss V] was in the kitchen, when she returned she came into the living room and thought [Miss V] was still in the kitchen with [Mr W]. [Mrs W] stated that she had not realised that [Miss V] had left house. [Mr W] stated that he was chatting to their guest in the kitchen and it was busy today with everyone inside the house and they have also had their son and his girlfriend visiting them. He assumed that when [Miss V] left the kitchen had gone upstairs to [Mrs W] and did not think to check. [Miss V] was unable to tell me consistently what she was doing outside on the road on her own.” (emphasis added).

The Health Authority and Local Authority have devised and implemented a multi-factorial strategy designed to protect Miss V from further sexual exploitation and pregnancy, under the umbrella of an ‘Interim Safeguarding Plan’. This plan contains, as its key provision, the requirement that:

“Mum and Dad continue to work with adult services and ensure that they do not leave [Miss V] in the care of any unknown or approved (sic.) persons, including her brothers until investigation is completed and agreed by social care”. (The obvious typographical error in this key provision has been exposed by the scrutiny of these proceedings).

There are further provisions for regular professional monitoring of the home situation, and of Miss V’s well-being, to maintain focus on the parents’ need for support. The community matron will “undertake ongoing work focusing upon relationships, personal safety within relationships and the right to say no, and sexual health.” In the event that the court were to approve the administration of a contraceptive patch, there is provision for close monitoring of the patch, and of Miss V, and enabling the skills of the family in managing the same.

It follows that contraception forms only one part of the plan of protection of Miss V, but in the view of the authorities an important one. The full range of possible contraception has been considered by the parties, including barrier methods, oral contraception, contraceptive injection, contraceptive implant, and coil. The efficacy, and the wider pros and cons, of these methods of contraception, and of the preferred proposed method of contraception – the contraceptive patch – have been discussed in a helpful report from Dr. Sam Rowlands, Consultant in Sexual and Reproductive Health, on the issue of contraception; Dr. Rowlands advised the court on not dissimilar issues in the case of The Mental Health Trust & Others v DD & BC (No.4) [2015] EWCOP 4.

Dr. Rowlands has opined that if the court regarded contraception as in Miss V’s best interests, the most appropriate form of contraception for her would be a contraceptive patch. The patch is applied to the lower abdomen, upper outer arm, buttock or upper torso. He summarises the pros and cons in this way:

Dr. Rowlands is of the view that Miss V will require support in applying the patch, and in monitoring its wear and replacement, over the four-weekly cycle. Dr. Rowlands proposes a 3-6 month trial, followed by review: “if she is free of side effects, local and systemic, then long-term use could be considered”. If adverse side-effects manifest themselves, then this will need to be considered further (and possibly urgently), as will the ability of Miss V’s parents to manage this.

It is agreed between the parties that if I were to conclude, contrary to the primary submissions on behalf of Miss V and Mrs W, that contraception is in Miss V’s best interests, the correct form of contraception would be a patch. The Interim Safeguarding Plan contemplates that social work and health care professionals will assist the family with the application, and replacement, and monitoring of the patch.

The relevant principles engaged in this issue are as follows:

There is no dispute among the parties that Miss V lacks capacity to consent to sexual relations, and make decisions in relation to contraception. She has a significant impairment of the mind, having sustained a severe brain injury as a toddler. She has limited understanding of sexual intercourse, the mechanics, or consequences; she has limited understanding of pregnancy and/or specifically the causes of conception. While in some respects she has demonstrated a surprising ability to follow instructions, for instance in relation to specific daily routines, and in relation to her ‘memory book’ compiled to help her to process the trauma of the birth and removal of her child, her capacity for long-term learning is selective and unpredictable.

Importantly Miss V still is not able to understand how a woman becomes pregnant, or that pregnancy could be avoided by not having sexual intercourse. She has some limited recognition of certain forms of contraception (and can demonstrate the part of the body where the contraceptive is used) but cannot weigh up the different methods of contraception. She appears to have a rudimentary understanding that wearing a contraceptive patch would prevent her becoming pregnant.

These conclusions dispose of the issues identified at [2](i) and (ii) above.

There is disagreement between the advocates as to the correct approach to the best interests’ question. Having reviewed the rival submissions, I have concluded that in considering whether it is in Miss V’s best interests that she receives contraception, I need to ask a series of interlinking questions, in this sequence:

[24](i): In answering the first question, I have considered carefully all the evidence relevant to risk, safeguarding, and the consequences for Miss V if the events which the parties seek to guard against were to come to pass. The Health and Local Authorities say that the safeguarding plan has been robust, but that contraception offers an important additional level of safeguard in the event that the plan fails.

The authorities argue that contraception will materially reduce the risk of pregnancy yet further. The social worker summarised the position in her oral evidence thus:

“Even though I believe that the plan is robust and the family are working with us, breaches are still happening, and the last two breaches, the parents did not even know P’s whereabouts.

This will give us an extra layer of protection, in the event that anything goes wrong, or not within the family’s control; P is very vulnerable, and for instance, she would have happily got into the car with a stranger if she had been asked to. The consequences are dire to her welfare. Our visits are within the working day; we cannot monitor 24/7.

P has a learning disability, her understanding about risk is limited. She has not much sense of road safety or her own personal safety; she is very likeable and happy young lady, who could be easily targeted”.

The Health Authority and the Local Authority, while satisfied overall as to the adequacy of the safeguarding plan, submit that the disbenefits of contraception in its least restrictive form are relatively modest compared to the very considerable disbenefit to Miss V were she to become pregnant again. They hark back to the description of Miss V’s distress following the delivery of her baby (see [9] above). Even if the risk is small, the emotional, psychological and physical consequences for Miss V if that risk became the reality are so grave that all reasonable steps should be taken to reduce or eliminate risk.

Underpinning the authorities’ arguments is the fact that Miss V is unable to identify risky situations for herself; she has no awareness of personal safety or environmental danger, and requires support at all times. The Local Authority consider that Miss V would feel empowered by having the patch applied, and feel satisfied by having her views (as to which see below at [33] et seq.) respected.

The argument against the use of any form of contraception is that the safeguarding plan is already sufficiently robust that this additional protection is not necessary; further, it is said, even the least restrictive form of contraception has side effects which are likely to outweigh the potential benefits. It is not appropriate – or specifically in Miss V’s best interests, argues Miss Powell QC – for contraception to be administered “just in case…”. Moreover, it is said that it would not be in Miss V’s best interests to expose her to the side-effects of any of the forms of contraception discussed (including the contraceptive patch) unless the benefits outweigh the disbenefits (see [17] above). Miss Powell, and Miss Gardner, point to the fact that the safeguarding plan would not be any tighter or more detailed if contraception is not administered, which demonstrates (they say) that of itself it adds little to the protections offered. They further submit that if the less restrictive contraception (i.e. the patch) were to be administered, this would expose Miss V potentially to a greater risk of sexual exploitation (if the sexual predator knows that she has contraceptive protection), and that any abuse would itself be more likely to remain undetected (the earlier rape was in fact only detected because of the pregnancy). For my part, I can say at this point that I am less persuaded by these latter arguments.

[24](ii): The answer to the second question is uncontentious. If I were to conclude that contraception of some form would be in Miss V’s best interests, no party dissents from the proposition that the contraception should be by patch. I am clear, as indeed are all parties, that long-acting reversible contraceptive (LARC) devices are not currently indicated in this case, at least in part because an invasive procedure would be required to achieve contraception (such as the insertion of an intrauterine device) and this would be strongly resisted by Miss V (see [45] below); accordingly, chemical sedation or general anaesthesia would be required to achieve this. This materially informs the answer to the question posed in [24](iv). Furthermore, Miss V is not a sexually active woman, and in the circumstances less restrictive options than a LARC device can be contemplated.

While Dr. Rowlands considered, and I agree, that Miss V would not have the ability to apply and replace the patch herself in a reliable way (at least initially), and would not be able to monitor its wear and replacement, the Local Authority proposes to instruct the parents in the management of the patch, and in the creation of a chart to plot the contraceptive/menstrual cycle. The social worker and community matron will be regular visitors to the home, on planned and unplanned occasions, to offer further checks on the arrangements.

[24](iii): The answer to the third question is, in my judgment, to be answered in the affirmative. There are pros and cons, risks and benefits, of each type of contraception considered by the parties and by Dr. Rowlands. It is agreed that it would be sensible that whatever contraception is proposed should be trialled before any longer-term decision is taken.This is, as I say, not likely to be contentious.

In considering all the issues raised, I have taken into account the views of Miss V as they have been received from the Official Solicitor’s representative, from the social worker, and from the community matron. Miss V has demonstrated a “clear ability to learn”, and has an understanding of certain forms of contraception, is able to identify these and is “able to demonstrate the part of the body where each contraceptive is used.” She has been less able consistently to understand more abstract information. Dr. Rowlands helpfully summarised Miss V’s views (as they had been reported to him) as follows:

The community matron opined that “whilst I do not consider her to have the capacity to make a decision regarding contraception, I do feel she is able to express a clear and consistent choice.”

Extensive efforts have been made to assist Miss V to understand the link between sexual intercourse and pregnancy, and/or contraception and pregnancy. Miss V appears to have some very limited understanding of the link between wearing the patch and avoiding pregnancy. In her conversations with the community matron and the social worker she has repeatedly referenced the ‘patch’, and appeared to confirm to the social worker following sessions conducted in March 2017 that she knew that the patch would need to be “put on, remove and put the new one on”; further that it was to be applied “to stop me getting pregnant”. Miss J, the Official Solicitor’s representative, on a visit to Miss V in the last few weeks, asked her “why have a patch?”, to which Miss V replied: “no baby”. She said that it was “OK” and “good” to have the patch. Although there is a limit on the weight which I can reasonably attach to these views, given her lack of capacity, I am nonetheless satisfied that she has a reasonable awareness of the contraceptive patch and its function and has indicated no opposition to wearing it. I recognise that in some respects she is suggestible and has been able to repeat information she has learned in a ‘rote’ way (there are examples in the documents), but in this regard, following extensive work with the community matron, I am satisfied that she shows some limited but genuine understanding of the issue.

I have taken into account the views of Mrs W, who speaks for the family. I accept without reservation the deep distress which she and her family have experienced as a result of the conception and birth of Miss V’s baby; the effects were shocking and devastating for them all. I accept that this fact operates, to some extent, as a protective measure in itself. I accept that these events have taken an enormous toll on Mrs W, and specifically on her physical and mental health; she is understandably said to have looked “under a lot of pressure” at times.

A key concern of the family are the adverse side-effects of contraception, even the patch. I am not particularly influenced by these concerns for three main reasons:

Ms Gardner relies on the fact that Miss V has not been the subject of a repeat assault, or harm, in the last fourteen months since the delivery of the baby, and that fact speaks for itself as to the effectiveness of the safeguarding plan. I am not persuaded that the absence of repeat assault tells us very much about the incidence of risk; quite apart from any other consideration, the parties have been subject to the glare of proceedings over the period mentioned. I am assured by Mrs W that she will co-operate with the order if I direct a trial of the contraception, and I accept that assurance.

In reaching my decision, I have weighed carefully the range of factors outlined above as I am statutorily required to do. I have further approached the issue, as Miss Powell was right to remind me, by noting that Miss V is not sexually active, has no boyfriend, and that the proposed administration of contraception is non-therapeutic. I guard myself against making a decision that is unduly risk averse, is one that respects Miss V’s Article 8 rights, and is one which maintains clear focus on what is best for Miss V, striking the balance between protection and empowerment.

I return to the point I made at the outset of this judgment: the combined objective of the parties to ensure that Miss V is protected from further harm (see [3] above). The Local Authority considers that the safeguarding plan is “robust”, or (as the social worker said) “as robust as it can be”. I agree with her qualified appraisal of the effectiveness of the plan, for the plan depends heavily for its success on the co-operation of Miss V’s parents, and their constant supervision of Miss V. However well-intentioned they are, and I do not question this, they are – as all humans are – fallible, and their fallibility is exposed particularly when under pressure, or when their attentions are diverted. There have been lapses of the safeguarding plan over the course of the last 12 months, one as recently as last week. Although Mrs W has deposed in her signed statement to the fact that her daughter “… is never alone, she comes everywhere with me”, this has been shown – even very recently – not to be true. I am not overly critical of the parents for these lapses, because I accept that they live in a busy household, and it is unrealistic to assume that they can keep Miss V in eyeshot every minute of every day. But Miss V is materially at risk from third parties if she wanders out of the house, down the street, unaccompanied and without her parents’ knowledge.

I find that there is a real chance that Mrs W’s focus on her daughter’s safety and well-being has been, and may yet be, unavoidably diverted by her own health needs or dramas. She told me that she has “a lot of physical health problems”, that she takes “thirteen tablets” a day, including anti-depressants. It is believed that Miss V was assaulted when Mrs W was away from the home overnight in hospital. As is apparent from [13] above, lapses of the plan have occurred when she has been absent from the home; it was notable that Mrs W was unable to attend court for the judgment, as a result of an unexpected health issue requiring urgent hospital treatment.

The underlying vulnerability of the plan is compounded by the fact Miss V shows limited recognition of danger, and “no understanding of the fact that she needs to be accompanied when out in the community or the reasons why this may be necessary” (per the social worker, in her oral evidence, which I accept). She has been known to try to leave the house when other family members leave “or when her cat is outside” (see [14] above), and may go out looking for the cat if she cannot find it in the house. She can be “over-familiar” with adults, even those not well known to her (see [6] above). The social worker adds:

“Due to [Miss V]’s lack of insight, she is unable to understand her vulnerability when out in the community, particularly with regards to strangers approaching her and possibly asking her to get into a car, or the fact that she may get lost and be unable to find her way back. [Miss V] showed no understanding of the support that she needs for personal safety.”

The fact that the protection plan would remain unaltered whether contraception is administered or not does not mean, in my judgment, that there are not real advantages to Miss V in receiving contraception. The safeguarding plan is designed to reduce the risk of sexual exploitation particularly outside of the home; contraception is proposed to reduce the risk of pregnancy in the event that the plan fails. If this additional safeguard can be introduced without undue side effects, and is a safeguard which Miss V is not unwilling to accept, then the best interests balance tilts in favour of its use.

The risk against which contraception is designed to guard is self-evidently a repeat pregnancy, delivery of the baby and probable removal, with its associated trauma (see [9] above); but pregnancy, even suspected pregnancy, usually brings with it a range of possible medical tests – the taking of weights, blood pressure, and bloods, for instance. The very prospect of any medical intervention, even the simple task of being weighed and measured in a clinic, and of blood pressure being taken, has left Miss V “petrified” in the recent past. It is incumbent on the court in the exercise of the discretion to reduce the need for such medical interventions, particularly since (and perhaps entirely predictably) Miss V displays a greater sense of mistrust of the professionals since the removal of the baby, and this adds another minor impediment to the effective monitoring of plan.

It may be that the side-effects of the patch are overly troublesome to Miss V; in that regard, the considered view may be that the disbenefits of the contraceptive patch outweigh the benefits. This will only be known after a trial of the patch. At the conclusion of the trial period, or at an earlier juncture should it become clear that the contraceptive patch is not appropriate, a best interests’ meeting will be held (to include the family, IMCA, the Official Solicitor, and health professionals) at which a decision will be taken as to whether it is right to continue with the patch or whether an alternative method of contraception should be attempted, or whether the likely disbenefits of continuation or of any other form of contraception outweigh the benefits. I am proposing to order a review of the case in no more than six months’ time. If the parents consider at any time that the adverse side effects are more significant than the Health Authority or Local Authority recognise, it would be open to them to apply to me to vary or discharge my order authorising the trial.

I therefore declare that it is in Miss V’s best interests that a contraceptive patch be administered for a trial period of up to six months. I shall list the case for review to coincide with the end of the trial, when further decisions can be taken.

I wish to make clear that this decision is about Miss V, and her best interests; the decision is taken in the context of her unique situation. I wholly reject the submission on behalf of the Official Solicitor that by declaring contraception in Miss V’s best interests I would in one way or another be setting a precedent for all incapacitous and vulnerable women.

That is my judgment.