An NHS Foundation Trust v AB & Ors

In this matter I am concerned with the question of whether it is in the interests of AB to have fitted an intrauterine contraceptive device (hereafter IUD) at the same time as she undergoes a caesarean section with the benefit of a spinal anaesthetic pursuant to the order of Mostyn J made on 24 September 2019. The application is brought by the Trust, represented by Ms Fiona Paterson of counsel. At the outset of this hearing that application was opposed by the local authority who are responsible for safeguarding AB, represented by Mr Jack Anderson of counsel. At the conclusion of the evidence, the local authority indicated that it no longer actively opposed the application but did not consent to it. At the outset of the hearing the application of the Trust was also opposed by the Official Solicitor, represented by Ms Susanna Rickard of counsel. However, again, at the conclusion of the evidence the Official Solicitor moved to a position of not consenting but not actively opposing the application. AB’s mother, CD, has in the past agreed that an IUD should be inserted, but not immediately after birth, so as to reduce what she considers to be the risk of post-partum infection. CD did not attend this hearing nor was she represented. However, an email to the court from her previous solicitors indicates that CD opposes the application of the Trust.

AB is a 25 year old woman who has been diagnosed with moderate learning disabilities and who is 38 weeks pregnant. She is the adopted daughter of CD, a midwife and native of Nigeria. AB came to the United Kingdom when she was 13 years old, having previously been raised by relatives in Nigeria. AB’s late grandmother was heavily involved in her upbringing up until her death in May 2017. AB speaks both English and Igbo.

The local authority has previously been engaged in supporting AB. Contained in the papers is a support plan dated 10 October 2013 which describes AB being supported 24 hours a day, 7 days a week, although it is unclear by whom and to what level of intensity. Elsewhere it is said that the previous level of supervisory support provided to AB by the local authority comprised 4 nights per week overnight social work support, forty-two hours per week daily support and one day’s attendance at a Day Centre. It would appear that this level of support ceased in September 2018 due to an overpayment. It is unclear when this, or a different level of support recommenced, albeit the local authority contends that AB has remained supported at all times by an informal network.

In April 2019 it was discovered that AB had become pregnant. The gestational dates would suggest that AB conceived whilst on a trip to Nigeria to stay with relatives from 28 October 2018. The primary purpose of AB’s trip was to visit her grandmother’s grave. It would appear that AB remains very attached to her late grandmother and frequently asks of her whereabouts. Whilst in Nigeria, AB stayed with, and was cared for by her two maternal aunts. AB’s mother, CD, was with her in Nigeria between 15 December 2018 and January 2019.

The local authority has not been able to ascertain from AB’s family, or otherwise, the circumstances under which AB became pregnant in Nigeria and, at least on the basis

As a result of her pregnancy, AB has been the subject of previous hearings before Lieven J (see Re An NHS Trust v AB [2019] EWCOP 26), the Court of Appeal (see Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215) and Mostyn J. On 21 June

AB has been assessed as lacking capacity to consent to sexual intercourse. On 25 September 2019, an assessment of her capacity to consent to / use contraception was undertaken by Professor X (Psychiatrist specialising in intellectual disability), Dr N (Consultant Perinatal Psychiatrist) and Ms T (treating consultant obstetrician). The outcome of that capacity assessment indicates that AB lacks capacity to consent to / use contraception. AB has been the subject of repeated capacity assessments by her treating team with respect to a variety of aspects of her pregnancy, including mode of delivery and contraception, all of which have indicated that AB lacks capacity to take the decisions that have been the subject of those assessments. No party sought to dispute that AB presently lacks capacity in respect of decisions concerning contraception.

At issue during this hearing has also been the extent to which further educative work and support would assist AB either to better participate in the decision making process regarding the insertion of an IUD or, even, to gain capacity in respect of that decision. Prior to the conclusion of the evidence, both the local authority and the Official Solicitor sought to argue that, with further educative work, AB could gain capacity in respect of decisions concerning contraception. Prior to the conclusion of the evidence the Official Solicitor further argued that, in any event, even if AB did not gain capacity a period of further educative work and support prior to any contraception being employed for AB would permit AB to better participate in the decision making process regarding such contraception, consistent with the demands of s 4(4) of the Mental Capacity Act 2005.

These arguments advanced by the local authority and the Official Solicitor relied on the opinion of a Senior Clinical Nurse Specialist in learning disabilities, Ms Q, who had indicated that she was optimistic that AB would gain capacity with respect to decisions concerning contraception with further educative work and support. During the course of the evidence, this contention continued to be advanced by the local authority and the Official Solicitor notwithstanding (a) the evidence of Ms T that it is

“extremely, extremely, extremely unlikely”, and the evidence of Dr N that it was “extremely unlikely”, that AB will gain capacity in respect of decisions concerning contraception and (b) the evidence of Professor X, unchallenged in cross-examination by either the local authority or the Official Solicitor, that Ms Q had expressed a similar level of optimism in AB’s ability to gain capacity in respect of decisions concerning modes of delivery but that AB plainly continued to lack capacity in respect of such decisions notwithstanding at least fifteen sessions with AB undertaken by Ms Q on the issue of mode of delivery. Indeed, the fact that AB has made no gains in this regard was acknowledged by Ms Q herself in a professionals meeting held on 10 September 2019.

With respect to the level of risk of further unplanned pregnancy in the near future, both the local authority and the Official Solicitor argued during the course of the hearing that on the evidence before the court the risk of an unplanned pregnancy for AB was at present, and in effect, nil. Before turning the reasons advanced for that assertion, it is important to note that the conclusion on the part of the local authority and the Official Solicitor that the risk of a further unplanned pregnancy for AB in the near future is in effect nil was one drawn by the local authority and the Official Solicitor in the following forensic context:

The high level of confidence expressed to the court by the local authority and the Official Solicitor that, notwithstanding the matters set out at paragraph 10 above, the risk of a further unplanned pregnancy in the near future for AB is, in effect, nil was based on the contention, advanced by the local authority and supported by the Official Solicitor, that the local authority now has in place a complete, comprehensive and effective support plan to safeguard AB from the risk of unplanned pregnancy, which plan negates the need for contraception at this point in time and allows for a further period of work with AB to increase her ability to participate in decisions concerning contraception. In summary, the plan advanced by the local authority and, during this hearing, endorsed by the Official Solicitor is:

Within the context of the foregoing plan, in addition to submitting, through Ms Rickard, that the risk of AB being exposed to further sexual activity (and therefore pregnancy risk) is at present, and for the foreseeable future, close to nil, on behalf of the Official Solicitor Ms Rickard further invited the court to conclude that AB’s pregnancy would not have occurred had AB been in CD’s care as “that pregnancy was not something CD wanted for AB, nor something she anticipated occurring, and it is not something she is likely to risk being repeated”. The Official Solicitor argued that this inference can safely be drawn from (a) the fact that CD has been extremely distressed by AB’s pregnancy (as noted by Lieven J in her judgment at [14]) and (b) from CD’s level of cooperation following the discovery of the pregnancy. In summary, and again in the context of the matters summarised in paragraph 10 above, the Official Solicitor submitted that:

“Simply put, given CD’s care of AB, her co-operation and agreement with the local authority, and the additional support and attention AB is receiving arranged by the local authority, there is no reason to believe AB will encounter a further situation in the foreseeable future in which sexual activity is allowed to take place”.

Within this context, the Official Solicitor submitted that there is no justification at this point in time for the interference with AB’s bodily autonomy that the fitting of an IUD would result in and nor is there any pressing need at this time for such a step. The Official Solicitor accordingly submitted that the application of the Trust was premature and should be dismissed.

The local authority likewise contended during the hearing, in the context of the purported safeguarding plan summarised above, that following “a number of conversations with” CD, it has no reason to consider that the plan to protect AB from further unplanned pregnancy will be ineffective and, accordingly, the use of contraception is “unnecessary and overly invasive”. I pause to note that in what purports to be its final safeguarding plan dated 8 October 2019, under the heading “Vulnerability to abuse”, the local authority fails to mention all but one of the matters listed at paragraph 10 above as a risk factor for continued vulnerability to sexual abuse.

The local authority continued to advance, and the Official Solicitor continued to give her support to the purported safeguarding plan outlined above (in the context of a proposal whereby CD will care for the new-born child whilst AB also lives at home) during the hearing notwithstanding the following matters:

During the hearing itself, the Team Manager was questioned extensively on the local authority’s plan to safeguard AB from a risk of a further unplanned pregnancy, and more generally. The evidence of the Team Manager was, I regret to observe, wholly unconvincing, characterised as it was by a lack of clear understanding of the current situation for AB, equivocality in respect of the anticipated role of other key agencies and an unwillingness to confirm cardinal aspects of the safeguarding plan beyond stating a hope that these aspects would be implemented. Within this context, it was clear from the evidence of the Team Manager that:

As I have noted, whilst Ms Rickard had indicated to the court following the evidence of Ms T that the Official Solicitor was giving careful consideration to her position in light of Ms T’s evidence regarding the level of pain a later insertion of the IUD would cause AB, in the context set out above, and until the Court expressly invited them to give further thought to their respective positions at the conclusion of the evidence, the local authority continued to advance, and the Official Solicitor continued to contend that the purported safeguarding plan rendered as nil the risk of unplanned pregnancy in the near future and negated the need for contraception at this point in time and pending further work with AB, the Official Solicitor expressing apparently untrammelled “confidence” in the effectiveness of the proposed safeguarding plan.

With respect to the medical position, as I have noted, the court has reports from, and heard oral evidence from Professor X, Dr N and Ms T.

Ms T was an extremely impressive witness, who gave measured, well informed and well-reasoned evidence within her field of expertise in obstetrics. Ms T is clear that AB does not have capacity to make a decision as to contraception. Ms T carried out an educative session with AB using items to demonstrate various methods of contraception and had tested AB’s retention of knowledge at an ante-natal appointment a week later. Ms T found that AB had not retained the majority of the information from the earlier session and that, whilst she did retain some information, she was unable to use and weigh information to come to a decision. Ms T was also clear in her view that further work with AB was not likely to improve her understanding and ability to participate in the decision making process regarding contraception. In this context, Ms T pointed out that she has undertaken some seven sessions with AB on the question of delivery methods but that AB’s understanding of this topic had not moved. As with the question of contraception, Ms T considered

Within this context, pressed by the local authority on the possibility of AB gaining capacity to make decisions as to contraception, Ms T was incredulous at the suggestion, stating, in the context of her extensive contact with and assessment of AB’s capacity in respect of delivery methods and contraception, that it is “extremely, extremely, extremely” unlikely that AB will gain capacity on the question of contraception. Ms T was clear that AB had not passed any of the capacity assessments undertaken with her, retaining some information but being unable to use it to understand the decision in question and to weigh risks versus benefits.

As to methods of contraception, Ms T was clear that, for AB, the IUD method of contraception is by far the most preferable. Ms T stated that, first, it is very effective at preventing pregnancy and much more effective than oral contraception. Second, Ms T pointed to the fact that barrier contraceptive methods such as condoms rely on others for their effectiveness. Third, hormonal contraceptives, particularly those containing only progesterone can have an adverse impact on those patients with mood disorders, features of which AB demonstrates. Ms T stated that use of hormonal contraceptives is further complicated by the fact that AB is currently on sertraline and risperidone for her mood and behavioural issues. Further, Ms T gave evidence that a combined oral contraceptive of oestrogen and progesterone could not be administered for the first six weeks following birth and, given the fact AB will have had a caesarean, up to eight weeks following birth administration would carry with it the risk of venous thrombosis. Further, Ms T considered that this form of oral contraception has a much higher failure rate than an IUD and that oral contraception is not an ideal long term contraceptive option. Within this context, Ms T was clear that an IUD is the best contraceptive solution for AB.

Ms T stated that, if authorised by the court, the IUD will be inserted when the caesarean incision is open, which allows the IUD to be carefully situated and checked in situ. As AB will have the benefit of a spinal anaesthetic, Ms T was clear that the implanting of the IUD in this manner will not result in any pain and that this method carries with it minimum risk of infection and minimum risk of perforation of the uterus. Given that AB will not have had a vaginal delivery, Ms T stated that there is also a minimum risk of the IUD being expelled. By contrast Ms T was clear that the insertion of an IUD at a later date would be extremely painful for AB. Ms T said this would be consequent on the fact that (a) AB would have a tight cervical opening having not given birth vaginally, (b) the insertion would require a prolonged speculum examination, (c) AB has demonstrated herself to have a relatively low tolerance of pain and (d) many women have described the discomfort of having an IUD fitted as “worse than giving birth”. Ms T stated that the insertion vaginally could take between five and ten minutes although it was impossible to be certain given that no imaging of cervix has been undertaken and it is not yet possible to state which position AB would have to be in for the insertion of the IUD. As to later insertion of IUD at same time as AB underwent a smear test, Ms T was concerned that this would prolong the speculum examination and that AB would thereafter equate the extreme pain of the IUD insertion with the smear test that she would have to undergo every three years.

Dr T was clear that a second pregnancy would be extremely detrimental for AB, who has looked distressed and upset through the process of “dry run” for the planned caesarean section, fighting back tears. As her treating obstetrician, Ms T considers that AB has found the process of pregnancy difficult and overwhelming. Ms T considered that a second pregnancy for AB would be “disastrous” for her.

Dr N likewise gave evidence with clarity and insight. As to capacity, Dr N stated that AB lacks capacity in respect of the question of contraception and that it is

“extremely” unlikely that she will gain capacity in this regard. Whilst clear that AB does not fulfil all the criteria for a mood disorder, Dr N was equally clear that AB does exhibit some of the features of a mood disorder and that, consequently, she is at a higher risk of post-partum psychosis than the general population for this reason (Dr N also making the point that as AB is adopted it is not possible to say how that elevated risk is further affected by genetic loading). Within this context, Dr N considers that AB will require close monitoring for the first six weeks, that hormonal contraception would have the potential to have an adverse impact on her mood and that insertion of the IUD at the point of the caesarean section would be much less distressing for AB in the context of the mental health vulnerabilities and leave AB with fewer distressing memories than a later, separate procedure. As to impact of a further pregnancy, Dr N was clear that she would be “dismayed” if AB became pregnant again, given the associated psychological risks to AB.

Finally Professor X, a professor of psychiatry specialising in learning disabilities at the Z Hospital was clear that AB lacks capacity with respect to decisions concerning contraception. Further, and as I have noted, Professor X simply could not accept Ms Q’s view that with further educative work AB could gain capacity on the question of contraception. Nor did Professor X believe that further work would result in AB being better able than she is now to participate in decisions concerning contraception within the context of her lack of capacity in this regard. Within this context, Professor X noted that extensive work done with AB on the question of delivery method had not resulted in any such improvement in AB’s ability to participate and that in work on the question of contraception AB had shown no ability to better retain information over time or a greater capacity to use and weigh information over time. This evidence strongly correlated with that given by Ms T. In so far as this evidence is said by the local authority to be contradicted by Ms Q’s view that AB will gain capacity in respect of contraception, the local authority chose not to call Ms Q and, as set out above, Professor X pointed out in evidence that was unchallenged in crossexamination by either the local authority or the Official Solicitor that Ms Q had expressed a similar level of optimism in AB’s ability to gain capacity in respect of decisions concerning modes of delivery but that AB plainly continued to lack capacity in respect of such decisions notwithstanding at least fifteen sessions with AB undertaken by Ms Q on the issue, as acknowledged by Ms Q herself in a professionals meeting held on 10 September 2019.

First, the following provisions of the Mental Capacity Act 2005 are relevant to the question of capacity:

Within this statutory context, a number of cardinal principles can be identified to which the court must have regard when deciding, on the balance of probabilities, whether a person lacks capacity in respect of the relevant decision or decisions, in this case capacity to make decisions in respect of contraception, for the purposes of the 2005 Act (see PH v A Local Authority [2011] EWHC 1704 (COP) at [16]):

With respect to best interests, once again, the statutory provisions with which the court is concerned are as follows:

Within this statutory context, the following propositions can be drawn from the authorities regarding the nature and scope of the best interests assessment with respect to contraception for those lacking capacity:

In this case, the Court has also been required to consider in some detail the terms of s 4(4) of the Mental Capacity Act 2005, which requires the court to ensure that P must, so far as reasonably practicable, be permitted and encouraged to participate, or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her (see Wye Valley NHS Trust v Mr B [2015] COPLR 843 at [18]). In the context of s 1(3), the term 'practicable' is interpreted in the Code of Practice as meaning “practical and appropriate” depending on “personal circumstances, the kind of decision that has to be made and the time available to make the decision”.

Section 4(4) is plainly a vital provision of the act, ensuring as it does that all reasonably practicable steps are taken to ensure that a person who lacks capacity retains the fullest possible level of autonomy in the decision making process appropriate to their particular circumstances, even if she lacks the capacity to take the decision herself. As King LJ noted in the Court of Appeal at [71]:

“Part of the underlying ethos of the Mental Capacity Act 2005 is that those making decisions for people who may be lacking capacity must respect and maximise that person’s individuality and autonomy to the greatest possible extent.”

However, the use of the words “so far as reasonably practicable”, and the interpretation placed on them in the Code of Practice, also make clear that efforts to permit and encourage P to participate in the decision have their limits. In particular, the search for increased autonomy for P in respect of the decision to be taken cannot be allowed to result in actions antithetic to P’s best interests. Within this context, there must be a balance struck between autonomy and protection.

As I have noted, the local authority and the Official Solicitor do not consent to, but no longer actively oppose the application of the Trust. The court understands that CD continues to oppose the application of the Trust. Having considered the evidence and submissions in this matter, I am satisfied that there remains an appreciable risk of future unplanned pregnancy in respect of AB. I am further satisfied that AB at present lacks capacity in respect of decisions concerning contraception and that it is highly unlikely that further work with AB will result in her gaining capacity in that regard and unlikely that further work will increase her ability to participate in such decision making. Further, I am entirely unconvinced that the purported safeguarding plan that has been advanced by the local authority and endorsed by the Official Solicitor during this hearing is sufficient to meet the appreciable continuing risk of future unplanned pregnancy in this case. Finally, I am satisfied that it is in AB’s best interests to be fitted with an IUD at the time of her caesarean section. My reasons for reaching these conclusions are as follows.

It is important to note that this court is not concerned at this point with making findings of fact, but rather with the assessment of risk. Whilst the evidence set out at paragraph 10 above might be insufficient by itself to ground specific findings of fact on the balance of probabilities regarding, for example, the manner in which AB became pregnant or the full extent to which she may have been exposed to sexual exploitation or sexual abuse in the past, that evidence is in my judgment plainlyrelevant to the assessment of the extent to which AB is at future risk of a further unplanned pregnancy.

Having regard to the matters set out above, I am satisfied that AB remains at an appreciable risk of unplanned pregnancy. That risk is grounded in the fact that AB has already become pregnant despite lacking capacity to consent to sexual intercourse, that it remains entirely unclear how AB became pregnant, that those adults who had care of AB at the time she became pregnant are not able to provide any information regarding how this came to pass (and accordingly the local authority is unable say whether, and if so how, the family were involved in the circumstances by which AB became pregnant and, therefore, the extent they can provide effective protection for AB in this context), that there is evidence from a number of sources (including records with respect to the family and a number statements by AB herself as set out in detail above) that suggest that AB has been involved in other sexual activity and may have been the victim of sexual abuse or sexual exploitation and that AB is a plainly vulnerable and trusting individual who can behave inappropriately towards others. Further, and in the context of neither the Police nor local authority having concluded their criminal and safeguarding investigations respectively, I am satisfied that the local authority is unable at present to state definitively the precise nature and extent of the risk to AB of further unplanned pregnancies. The significance of this forensic lacuna appeared to be entirely lost on the Team Manager. However, I am satisfied that the level of risk of further unplanned pregnancy in respect of AB is further increased by the fact that that risk is at this point incompletely assessed and thus difficult to quantify definitively.

Within the foregoing context, in my judgment it is plain that in the short term there is an appreciable risk that AB will be sexually active or exposed to sexual activity whilst she remains in the United Kingdom, or indeed if and when she visits her family in Nigeria. Further, as a young women, the chances of AB conceiving are high and, accordingly, the risk of AB being sexually active or exposed to sexual activity translates to a concomitant appreciable continuing risk of unplanned pregnancy. In the medium to longer term, given AB’s age this appreciable level of risk will continue for at least a further ten years, during which time I am satisfied that it is likely that AB will return to Nigeria to visit her family.

Whilst I accept that in the difficult area of risk assessment, different risk assessors may come to different conclusions regarding on the level of risk presented by a given situation, I am concerned that within the forensic context set out in this judgment, both the local authority and the Official Solicitor arrived at a risk assessment of unplanned pregnancy for AB in the near future of nil. In light of the matters I have recounted, I struggle to see how such a conclusion could have been properly drawn from the evidence available, including that evidence concerning the purported safeguarding plan advanced by the local authority. In respect of the latter, that the local authority’s purported safeguarding plan drove the local authority and the Official Solicitor to return a nil result in respect of risk of unplanned pregnancy in the near future seems to me to indicate an entirely unjustified level of confidence on the part of the local authority and the Official Solicitor in what amounts to an incompletely formulated plan founded on a home situation that remains uncertain, fluid, opaque and incompletely assessed in terms of risk.

As I noted, there no dispute as between the Trust, the local authority and the Official solicitor that AB lacks capacity to decide whether to receive contraception in the form of a IUD. I am likewise satisfied that based on the evidence before the court that AB at present lacks capacity to take decisions concerning the insertion of an IUD for the purposes of contraception.

Having heard the evidence of Ms T, Dr N and Professor X, and the evidence of the Team Manager, I am entirely satisfied that it is at present highly unlikely that AB will gain capacity in respect of these matters. In this regard I prefer the evidence of Ms T, Dr N and Professor X to the evidence of the Team Manager and the views of Ms Q to which my attention has been drawn. Having considered the capacity assessments and the exchanges that have taken place with AB, it is plain that whilst AB is able to retain some information, she has little if any understanding of the medical issues surrounding contraceptive treatment. Those capacity assessments undertaken over a number of months do not in my judgment show any evolution in this regard. As I have observed at a number of points, this reflects the position with the work undertaken by Ms Q in respect of delivery methods. Whilst I note the position taken by Ms Q, and whilst I listened carefully to the evidence of the Team Manager, viewed in the context of the medical evidence before the court their respective positions appeared to me to arise more from adherence to a conceptual or ideological viewpoint regarding the importance of ensuring autonomy for those lacking capacity than from a careful, dispassionate and considered assessment of AB’s own abilities.

AB’s past and present wishes and feelings in respect of contraception are difficult to ascertain having regard to her limitations. From the transcripts of exchanges with AB during various capacity interviews, it is apparent that AB is able to retain some limited information on the types of contraception and sometimes can recall in simplistic terms the purpose of contraception. Within this context, there is one exchange with AB in which she might be taken to be expressing a view in favour of contraception, although ultimately this exchange on 4 October 2019 remains equivocal in its meaning:

“LD: Okay, so this is called a coil.

AB: Coil.

LD: And I think the doctors talking about maybe putting it in your tummy.

AB: Yes.

LD: To stop any more babies growing in your tummy> AB: Yes.

LD: What do you think about that?

[AB gave a thumbs up].

LD: Why do you say thumbs up.

AB: Good.

LD: Good?

AB: Yes, I like it, I am excited.

LD: You like it?

AB: Yes. Tummy, inside it.

LD: Why do you like it?

AB: It’s good.”

Within the foregoing context, I am not satisfied that it is possible with any degree of certainty to establish AB’s wishes regarding the use of contraception or in respect of the different methods of contraception available. I do note however that, whilst AB appears happy now to be pregnant, prior to becoming pregnant she at times stated that she did not want to get pregnant.

With respect to AB’s beliefs and values, as King LJ noted in the Court of Appeal at [58], it is difficult in this case to establish AB’s beliefs and values and import them into the best interests analysis in circumstances where:

“AB, however, has never had capacity and there can therefore be no direct evidence as to her actual beliefs and values; who can say if she might not have lost her faith or rebelled against the tenets of her community by the time she reached her twenties. It may be that, had she capacity, she would have been heavily influenced by the beliefs governing her community, but there is no evidential basis for concluding that to be the case, and to import those views into the best interests analysis would be mere speculation.”

Within this context (and whilst for my part I consider that there will be some cases where it is possible to establish direct evidence of the actual beliefs and values of P notwithstanding P having always lacked capacity) there is in this case no cogent direct evidence of AB’s beliefs and values regarding the use of contraception and, within this context, it would be likewise artificial to extrapolate the same from the environment in which AB lives, not least because the court has heard no evidence of what the community in which AB was raised thinks about the use of contraception.

I have also taken carefully into account the views of CD regarding the use of contraception for AB, insofar as those views can be ascertained. As I have noted, CD has not attended this hearing and the court has only an outline of her views on the issues before the court. Within this context, it would appear that CD does not discount entirely the use of contraception for AB but objects to it being utilised at this stage, and specifically objects to the insertion of an IUD immediately following AB’s caesarean section, it would appear in part based on what she considers an increased risk of infection. With respect to this risk, the Trust contends that this concern is based on older research and that the risk of infection is now minimal. Whilst I have taken the concerns of CD into account, I am satisfied that those views are not such as

In the assessment of best interests, the question of risk must be weighed, including the risk of future pregnancy and the risks to mental and physical health associated with pregnancy, childbirth and/or the removal of the child. For the reasons set out above, I am satisfied that there is an appreciable risk that AB will have a further unplanned pregnancy unless steps are taken to prevent this. The history of litigation in this matter demonstrates eloquently the devastating impact that a failure to protect AB from the appreciable risk of further unplanned pregnancy that I am satisfied subsists in respect of AB. Further, I have given weight to the opinion of Dr N, endorsed by Professor X, that in light the features of a mood disorder displayed by AB, she is at greater risk of mental health difficulties, including puerperal psychosis following the delivery of a child. There is no reason to believe that this risk would cease to pertain in respect of a further unplanned pregnancy. Finally, I have born in mind the careful evidence of Ms T regarding the upset and distress that AB has experienced as the “dry run” for the upcoming caesarean section has been completed.

As I have noted above, the manner in which the identified risk is addressed should be sensible, with the court also seeking the least restrictive or intrusive option. Within this context, the local authority and the Official Solicitor argued until the conclusion of the evidence that the purported safeguarding plan advanced by the local authority was sufficient to eliminate the risk to AB of a further unplanned pregnancy, without the need for recourse to contraception. Whilst neither the local authority or the Official Solicitor ultimately opposed the application of the Trust, I am in any event satisfied that this conclusion was misplaced for the reasons that I have set out above. I am satisfied that the risk factors identified at paragraph 10 above would not be sufficiently mitigated by the supervisory safeguarding plan advanced by the local authority, given the difficulties with that plan that I have detailed in this judgment. Whilst I accept that where P is well supervised at home and in the community, those are factors to be taken into account in the best interests evaluation, I am equally conscious that even a small risk that P will elude the supervision put in place is likewise a factor to be taken into account when considering whether to authorise contraception (see Re P [2018] EWCOP 10 at [50]). Within this context, I am entirely satisfied that the current deficiencies in the plan that I have identified in this judgment render that plan unsuitable for safeguarding AB from the appreciable risk of further unplanned pregnancy that I have identified.

In considering AB’s best interests, I accept that the court must strive for a balance between protection and autonomy and I have listened carefully to the submissions of the local authority and the Official Solicitor with respect to the extent to which further work with AB could increase her ability to participate in the decision making process before any decision as to contraception is taken by the court. However, I am satisfied that it is unlikely that further work with AB will increase her ability to participate in decisions concerning contraception notwithstanding her lack of capacity to take the decision for herself. Further, I am satisfied that even if additional work could achieve a small measure of greater insight on the part of AB that might allow slightly fuller participation by her in decisions concerning contraception, once again, in circumstances where this court is concerned with AB’s best interests the search for autonomy has to be balanced against the need for protection.

In this case, and on the evidence before the court, I am satisfied that further educative work would achieve little or no improvement in AB’s ability to participate in the decisions in issue. I am further satisfied that if any minimal gains were achieved, they would be achieved only at the expense of the opportunity to insert the IUD at a point where this would not cause the high level pain and distress to AB that would result in a second invasive procedure being carried out at a later date following further educative work with AB. Within this context, and in circumstances where the evidence is clear that it is extremely unlikely that AB will gain capacity to take decisions in respect of contraception, the case advanced by the local authority and the Official Solicitor was one that sought to pursue at best marginal gains in participation for the price of a later and more painful second invasive procedure at a time when AB will be particularly vulnerable in terms of her mental health and following a period of sub-optimal contraceptive treatment (both in terms of its effectiveness and / or its impact on AB’s mood) in the context of an appreciable risk of further unplanned pregnancy. On the evidence before the court, and again in circumstances where the evidence is clear that it is extremely unlikely that AB will gain capacity to take decisions in respect of contraception, I am satisfied that such a course cannot constitute a reasonably practicable means of ensuring AB’s participation in the decision making process for the purposes of s 4(4) of the 2005 Act.

In identifying AB’s best interests in respect of the contraception the court must endeavour to achieve the least restrictive option. Within this context, whilst the insertion of an IUD is an invasive procedure, in this case I am satisfied that it is a less restrictive option than that advanced during the hearing by the local authority with the support of the Official Solicitor. First, if the application of the Trust is granted, the insertion of the IUD will take place during the course of an invasive procedure that this court has already endorsed as being in AB’s best interests, rather than by way of a separate, later and far more painful procedure. Second, the ongoing protection provided by the painless insertion of the IUD is in my judgment a far less restrictive means of protecting AB from an appreciable risk of further unplanned pregnancy than the 24 hour programme of intensive supervision proposed by the local authority. I am satisfied that this purported safeguarding plan represents a far greater level of intrusion in and restriction of AB’s day to day life, aimed at reducing the risk of further unplanned pregnancy, than the insertion of a readily removable contraceptive device. To put it another way, the painless insertion of an IUD during a pre-planned invasive procedure is in my judgment a measure that is far more proportionate to the risk it is sought to address than is a 24 hour programme of close supervision of AB that will result in her never being left on her own, significantly impacting on her level of autonomy in other areas of her life. This is particularly the case, where the plan of supervision will not, for the reasons I have given, provide effective protection against the level of risk of further unplanned pregnancy that I have identified.

Finally, in circumstances where the insertion of an IUD will prevent AB from having children and making a significant choice regarding her own body, AB’s Art 8 rights are engaged. As I have noted above, proper consideration of P’s Art 8 rights is achieved through the best interests appraisal under s 4 of the Mental Capacity Act 2005. Within this context, I have had regard to the fact that, whilst it is the case that for the duration of its insertion the IUD will prevent AB from conceiving, the evidence before the IUD can be removed at any time should AB’s position change in terms of capacity to consent to sexual relations. Having regard to the risks I have identified, and to the consequences for AB of those risks becoming manifest, I am satisfied that the interference in AB’s Art 8 rights constituted by the court decision to authorise the insertion of an IUD as being in AB’s best interests is one that is necessary and proportionate for the purposes of Art 8(2).

Having regard to the foregoing matters, in all the circumstances, I am satisfied in this case that it is in AB’s best interests for an IUD to be fitted during the course of the scheduled caesarean section and I so declare.

The local authority and the Official Solicitor sought to characterise the application made by the Trust as simply an argument for medical expediency. Mere expediency would not by itself support a conclusion that it is in AB’s best interests for an IUD to be fitted. However, in this case it is not mere medical expediency that justifies such a step. Rather, it is the multitude of other factors set out above that I am satisfied point clearly to it being in AB’s best interests for that step to be taken at this stage for the reasons I have given.

Within the foregoing circumstances, I am satisfied that AB lacks capacity with respect to questions of contraception. I am further satisfied that it is in AB’s best interests to be fitted with an IUD at the time she undergoes a caesarean section in respect of her current pregnancy and I so declare.

That is my judgment.