Today I returned to Southampton University Law Department where I had studied my LLM from 2002-2006. Nothing much had changed, other than that my dissertation buddy now has his own office and ‘Dr’ in front of his old name.
I went to present my reasoning as to why I considered the recent judgment of Mrs Justice Parker sitting as a Judge of the Court of Protection, authorising the sterilisation of a man for non-therapeutic reasons heralded a success for the Mental Capacity Act and the Court of Protection. I discussed this in an article found elsewhere on my blog. I did so by setting out my views again and explaining to the group that I was working from the starting point of my role as a solicitor. As a solicitor I use the law to get what my clients want, so it is only natural that a judgment that supported what it was an individual who lacked capacity to consent to sterilisation wanted to achieve was good in my books.
Andreas Dimopoulos, a lecturer at Brunel University responded to my original blog with ‘Some contrarian thoughts on Re DE‘ Today he reiterated his concerns that to find someone as lacking the mental capacity to make his own mind up about having a vasectomy and to make the decision to have the procedure was not compliant with his Article 8 right to private life on the basis that the threshold for such an interference should be set extremely high. He also argued that he may wish to found a family in later life and removing that chance by substituted decision making was a breach of his Article 12 ECHR right. His argument was umbrella’d by his concern that the entire scheme of the MCA was not compatible with the UN Convention on the Rights of Persons with Disabilities, but accepted that this was not binding in England and Wales so was persuasive at best.
The event was publicised by Health Ethics and Law Research Group at the University of Southampton on its blog
and promised to be a lively discussion. It certainly was.
I still don’t agree that someone shouldn’t undergo sterilisation if he can’t consent to it himself, because in my view this would potentially discriminate against him in comparison to someone who can make the decision himself. Andreas’ point, I believe, was that there shouldn’t be a regime whereby someone is assessed as lacking capacity and then someone else makes a decision for him, he should just have been assessed as having capacity and made the decision himself. This brought forward a really interesting debate to whether more work could have been done with him to improve his capacity to consent to a vasectomy as it had with consent to have sexual relations.
I agree that work could be done, but given DE’s expressed wish to just get on with his life after all that upset, and his expressed current wish not to have more children, my view remains that this was the right decision for him at this time. None if us know what will happen in our futures and the fear that we might want something different in 10-20 years time does not always stope us making big and life changing decisions i the hear and now. Why should it be different for DE when his wish for his old, independent life was so apparent?
There were many more interesting points covered, and I hope that perhaps Andreas and I could think about working on something to come from this debate as it does highlight the way that the MCA in practice is all well and good and works well to promote independence, but there are times, such as in this case, that Human Rights law doesn’t rub shoulder to shoulder with it. Does it matter? In some cases, I’d say yes. In others, like in DEs case, I’m not sure it does at this point in time.