Often, human rights cases involve the most difficult decisions imaginable. Decisions which judges would probably prefer not to have to make, but have to because it is their job to be the last port of call. This is just such a case.
K was, in the judge’s words, “a delightful, warm, engaging and affectionate young woman”. K was 21 years old at the time of the case, and was born with Down’s syndrome.
K’s parents, Mr. and Mrs. K, cared lovingly for her. The judge noted that “there is nothing but praise for Mr. and Mrs. K, and their devotion to K.” However, as K became older, her parents’ ability to supervise her life was reduced.
That meant there was a chance that K might have sex. Her parents thought that K’s becoming pregnant would be very bad for her. After K had a difficult experience with a contraceptive hormonal implant, Mr. and Mrs. K sought a consultant’s advice on sterilisation. On finding out that it was indeed K’s parents’ intention to sterilize her, the local authority asked the Court for a declaration of whether this would be in K’s best interests. K was not legally capable of deciding this for herself as she was not able to understand and weigh up the medical issues surrounding contraception and sterilization.
The judge acknowledged that this was a difficult question. On the one hand, becoming pregnant was likely to adversely affect K’s life. On the other, sterilisation is an invasive procedure with permanent effects that would interfere with K’s physical integrity.
Looking to the Mental Capacity Act 2005, the judge noted that its guiding principles said that any decision made by the Court had to be in K’s best interests and, more importantly, the least restrictive of K’s rights and freedom of action. Finding that “[n]o one can doubt the seriousness and significance of a sterilization procedure”, the judge decided that other less restrictive methods of preventing pregnancy could be used and, as such, sterilisation would be disproportionate. In his words: “Plainly risk management is better than invasive treatment.”
