Note:
This legal decision from the United Kingdom is regarded as being of importance in several countries.
Note:
COURT OF APPEAL (CIVIL DIVISION)
[2000] 1 FLR 549, [2000] 1 FCR 193
HEARING-DATES:
23, 24 November, 20 December 1999
20 December 1999
Medical treatment - Adult - Mental incapacity - Male sterilisation - Whether in patient's best interests.
A, who was now 28 years old, had Down's syndrome and had been assessed as being on the borderline between significant and severe impairment of intelligence. He lived with his 63-year-old mother who provided him with a high degree of care and supervision. However, the mother's health was not good and her major concern was that, when A moved into local authority care, he might have a sexual relationship resulting in the birth of a child and he would be unable to understand the consequences, and she disapproved very strongly of a man walking away from responsibility. Accordingly, the mother, acting as A's next friend, applied to the High Court for a declaration that a vasectomy operation was in A's best interests and could lawfully be performed on him despite his inability to consent to it. The Official Solicitor opposed the application. The judge found that whilst A was sexually aware and active, he had no understanding of the link between sexual intercourse and pregnancy. He held that, while in the care of his mother A was unlikely to enter into any casual sexual relationship with a woman, but were a pregnancy to occur the effect on A would be minimal, and concluded that a vasectomy operation was not essential to A's future well-being. On appeal to the Court of Appeal, the mother argued that sterilisation ought to be seen as a form of contraception; that the decision should be taken now and not later; and that the main consideration was the quality of life which it was possible for A to enjoy.
Held - Sterilisation of a mentally incapacitated patient on non-therapeutic grounds could only be carried out if it was in the best interests of the patient. The concept of best interests related to the mentally incapacitated person and were not limited to best medical interests, but encompassed medical, emotional and all other welfare issues. On an application for approval of a sterilisation operation, it was the judge, not the doctor, who made the decision that it was in the best interests of the patient that the operation be performed. An application on behalf of a man for sterilisation was not the equivalent of an application in respect of a woman, as there were obvious biological differences. In the case of a man who was mentally incapacitated, neither the fact of the birth of a child nor disapproval of his conduct was likely to impinge on him to a significant degree other than in exceptional circumstances. His freedom of movement might in certain instances be restricted and consequently his quality of life might be diminished. The task in each case was to balance all the relevant factors, and to decide what were the best interests of the person unable to make his own decision. In the present appeal it was necessary to focus upon the best interests of A himself and it was clear that, as long as the mother cared for him, he would continue to be subjected to the present regime of close supervision. If sterilisation did take place, it would not save A from the possibility of exploitation nor help him cope with the emotional implications of any closer relationships that he might form. It was clear from the evidence that the level of supervision at the day centre did not depend upon his fertility, and the supervisors stopped inappropriate behaviour because it was conducted in a public place, which would continue whether or not he had the operation. It followed that the appeal would be dismissed.
Per Thorpe LJ. The failure of the appeal did not preclude a fresh application in the future on fresh evidence.
The mother of a 28-year-old male with Down's syndrome appealed with leave from the decision of Johnson J on 30 July 1999 whereby he dismissed the mother's originating summons for a declaration that a vasectomy operation was in her son's best interests and could lawfully be performed on him despite his inability to consent to it. The facts are set out in the judgment of Dame Elizabeth Butler-Sloss P.
Allan Levy QC and Jane Mischon for the appellant; Robert Francis QC for the Official Solicitor.
Cur adv vult 20 December 1999. The following judgments were delivered.
DAME ELIZABETH BUTLER-SLOSS (P), SCHIEMANN AND THORPE LJJ
JUDGMENT-1:
DAME ELIZABETH BUTLER-SLOSS (P). A is 28 years old. He has Down's syndrome and has been assessed to be on the borderline between significant and severe impairment of intelligence. He lives with his mother aged 63 who has cared for him since birth with brief interludes of respite care. On his behalf she has applied to the High Court for a declaration that-
'the operation for sterilisation proposed to be performed on [A] by way of vasectomy is in his best interests and can lawfully be performed on him despite his inability to consent to it.'
The application is made under the inherent jurisdiction of the High Court and in accordance with the procedure laid down by the House of Lords in Re F (mental patient: sterilisation) [1990] 2 AC 1; sub nom F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 and the subsequent practice note issued by the Official Solicitor in June 1996 (see Practice Note (Official Solicitor: sterilization) [1996] 3 FCR 95). This practice note stated that the Official Solicitor should be made the defendant in sterilisation applications.
The application came before Sumner J on 30 July 1999. It was opposed by the Official Solicitor. Sumner J refused the application for a declaration and, since it appears to have been the first case seeking the court's approval for sterilisation of a male patient, gave permission to appeal.
The judge found that A had no understanding of the link between sexual intercourse and pregnancy and that A was and would remain incapable of understanding the purpose of the proposed operation and would not be capable of giving or refusing consent to it. He is however sexually aware and active. He masturbates when he sees pictures of nude women. He has been involved in affectionate incidents with women of a sexual kind. He is fertile and might be physically capable of fathering a child.
The judge set out the daily routine arranged for A by his mother. He goes to the day centre three days a week. On day four he goes to a literacy centre and he also attends a club for people with disabilities. He has had jobs. He can learn a routine but does not follow it. He needs to be reminded daily in relation to all activities. He does not see danger nor anticipate results. He has no idea of money or time. He is allowed to travel short distances on his own and can manage simple journeys and can go to shops. He is very vulnerable because he is friendly and easily led. He enjoys the company of other people and likes to be close to women and to kiss them. The mother is on her guard against inappropriate behaviour. There were instances at the day centre of such inappropriate behaviour which were stopped. The mother would not want him to have a casual sexual relationship in her home but it might be different if it was a stable relationship.
The evidence by the mother disclosed that she has provided him with a high degree of care and supervision. Her health however is not good and she is shortly to go into hospital for operations to her back and hip. That has highlighted the need to make sensible plans for his future. She fears that she is unlikely for much longer to be able to continue to give him the same high level of supervision that she provides at present. She has ensured a suitable degree of supervision over him at the day centre which he attends. The mother's major concern is that, when A moves to local authority care, in the absence of an operation to sterilise, her son might have a sexual relationship which might make the woman pregnant. She very much disapproves of a man walking away from responsibility when responsible for the birth of a child. In the case of A he would not understand the consequences. She feels very strongly that the operation is necessary and would be upset if it did not take place:
'She said she would feel extremely disappointed because [A]'s future had not been considered as such. It is the risk that he could suffer real upset …'
The judge accepted the evidence of the mother. He said that the mother gave her evidence with care and compassion:
'Her standard of care, the sincerity of her application and her good sense in planning for the future have rightly not been questioned.'
The application was supported by a distinguished consultant psychiatrist, Dr Campbell who gave evidence in Re F (mental patient: sterilisation). He provided two reports and gave oral evidence. He saw A in 1993 and in 1998. He confirmed that A would be incapable of giving consent to the operation. He supported the proposed operation since A would not be able to use contraceptives. He recognised that A enjoyed close physical contact and considered that, with a lesser degree of supervision in the future, he would have the ability and would be more likely to have the opportunity to have a full sexual relationship with a woman which might place her at risk of pregnancy. He felt that it would be unreasonable so to restrict A's life as to deprive him of the opportunity of closer friendships with women. It became apparent from his oral evidence that he believed that the current degree of supervision of A was largely due to efforts to prevent any possibility of a sexual relationship and that the effect of sterilisation would be to give him a greater degree of freedom. He was clear that A had indicated no when asked about an operation, but it was not an informed no since he could not understand the reason for the operation.
There was also evidence from those who care for A during the week at the day centre and from two consultant urologists. Both surgeons would prefer a general anaesthetic if the operation were to be performed. There was some hesitation expressed about carrying out the operation against A's wishes. The judge was however satisfied that, if the court gave its approval, a competent surgeon would agree to carry out the operation. It was not without risk but was unlikely to have any harmful side-effects and would in all probability achieve sterilisation.
The Official Solicitor called Dr Holland, a psychiatrist who is adviser to the Down's Syndrome Association. He saw A in 1998. He did not share Dr Campbell's support for the proposed operation. He considered that A was unlikely to have engaged or to be engaging in sexual intercourse or to have any idea of its nature. It was likely that the women with whom he came into contact would themselves be vulnerable and would also be under a degree of supervision such as to inhibit opportunity. The actual risk of sexual intercourse was very small. He did not consider that it would be in A's best interests to have the operation at this time. There were other concerns that might arise from sexual intercourse, such as sexually transmitted diseases in respect of which a vasectomy would not assist. He recommended that A should receive advice that would be broader in scope than the protection from a vasectomy, for instance, about the emotional side of relationships and that they can come to an end.
The judge directed himself, correctly, that-
'the application [for a declaration] will be granted when it is in the best interests of the patient concerned, it will be refused when it is not.'
He held that, while in the care of his mother, A was unlikely to enter into any casual sexual relationship with a woman. The risk was very low indeed. If a pregnancy did occur, A would not understand its implications and would not be affected by it unless he became the object of criticism. The judge considered that to be unlikely and if it happened the effect would be minimal. He considered the possibility of the birth of a child of whom A was the father and that he might know and become bonded with the baby who was thereafter removed. He was satisfied that the risk of this eventuality was speculative. He considered that the possibility of a stable relationship would not be prevented by the absence of a vasectomy. He concluded:
'I do not see that the advantages to A of a vasectomy are clear. It will not protect him from being exploited or from a risk of sexually transmitted diseases. It will not protect him from casual relationships which his mother would not like; it only prevents one possible but important result. It follows that because there are other risks involved in any sexual relationship that A may have with a young woman, the degree of vigilance and supervision is not likely significantly to decrease, whether he is or is not at home … Thus I do not accept that the operation would add value to the quality of A's life to any significant extent ... Faced with the alternative of an invasive operation not without risk, I do not regard the risks that would otherwise face A as warranting such a course, nor the advantages to A as sufficiently positive. The operation is, in the words of Lord Goff of Chievely in Re F, not essential to A's future well-being.'
He did not rule out the possibility that in the future the circumstances might change but the risks would have to be clear and the benefits well-established.
On appeal Mr Levy QC, on behalf of A, argued that sterilisation in this case ought to be seen as a form of contraception.
He raised four main points.
Mr Francis QC, on behalf of the Official Solicitor, submitted that there was a presumption against sterilisation of a mentally incapacitated patient on non-therapeutic grounds which could be displaced by evidence of good reasons in the best interests of the patient. It requires the approval of a High Court judge. It involves invasive surgery and is considered to be irreversible. Following the principles in Re F (mental patient: sterilisation), the operation may only be carried out if it is in the best interests of the patient. The 'Bolam test' does not provide the answer which remains best interests (see Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582). The issues which have arisen in the female sterilisation cases do notarise in the case of men. The problems of pregnancy arose for the women who might be involved. He referred to the history of forced sterilisation in other countries, the anxieties created by that history and the value which should be set upon the human rights of someone unable to consent. He drew our attention to the facts in the decision of Heilbron J in Re D (a minor) (wardship: sterilisation) [1976] Fam 185, [1976] 1 All ER 326 which he suggested had an important influence on the decision of the House of Lords in Re F. He referred to the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Human Rights Convention) (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) and the right to privacy and to found a family. The view of A that he did not want the operation ought not to be ignored even though he was unable to understand its implications. A refusal by the Court of Appeal would not adversely affect the care given by the mother to A nor would sterilisation displace the continuing necessary level of supervision imposed upon A. There was support available along the lines referred to in the evidence of Dr Holland. The conclusion of the Official Solicitor was that the facts of the present appeal did not establish that the proposed operation was in the best interests of A, but there might in the future be a change of circumstances which might then establish a case for sterilisation.
The starting point for consideration of the principles to be applied on an application for sterilisation of an adult who is unable to consent is the decision of the House of Lords in Re F. There was, in that case, no issue before the court as to the desirability in the best interests of the patient that she should have the operation. She was 36 and an in-patient in a mental hospital with a mental age of a small child. She had formed a close relationship with a male fellow patient. The concern of her mother and those who cared for her was the possibility that she might become pregnant and the view that she would be unable to understand or cope with the fact of pregnancy. In the absence of sterilisation, she was likely to have her limited freedom further curtailed. This was, however the first time that the courts had had to grapple with the lacuna in the law relating to mentally incapacitated adults who required treatment outside the limits of the mental health legislation. The main direction of the decision was towards the procedure to be adopted in order to enable the doctors lawfully to carry out a medical procedure which was considered to be in the patient's best interests.
Lord Bridge said ([1990] 2 AC 1 at 51, [1989] 2 All ER 545 at 548):
'My Lords, I have had the advantage of reading the speeches of my noble and learned friends Lord Brandon of Oakbrook and Lord Goff of Chieveley. I concurred in the dismissal of the appeal, subject to a variation of the terms of the order made by Scott Baker J., for the reasons given by them. The appeal raised a number of difficult questions regarding both the jurisdiction and the procedure of the court in relation to the lawfulness of the sterilisation of an adult woman disabled by mental incapacity from giving her consent to the operation. These issues are fully examined by Lord Brandon and Lord Goff and I further agree, for the reasons they give in the following conclusions: (1) that no court now has jurisdiction either by statute or derived from the Crown as parens patriae to give or withhold consent to such an operation in the case of an adult as it would in wardship proceedings in the case of a minor; (2) that the court has jurisdiction to declare the lawfulness of such an operation proposed to be performed on the ground that it is in the circumstances in the best interests of the woman and that, although such a declaration is not necessary to establish the lawfulness of the operation, in practice the court's jurisdiction should be invoked whenever such an operation is proposed to be performed; (3) that for the future the procedure to be used when applying for a declaration of the kind in question should be regulated as proposed in the speech of my noble and learned friend Lord Brandon of Oakbrook.'
There was however, no discussion in Re F nor was there any need to discuss in that case, what is encompassed within the phrase 'best interests of the patient'. Lord Brandon said ([1990] 2 AC 1 at 55, [1989] 2 All ER 545 at 551):
'In my opinion, however, the solution to the problem which the common law provides is that a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment is in the best interests of such patients. The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health.'
Although this passage might be read as limiting the scope of a sterilisation operation to medical grounds, the decision did not require broader considerations. Lord Goff however said ([1990] 2 AC 1 at 77, [1989] 2 All ER 545 at 567):
I find myself to be respectfully in agreement with Lord Donaldson of Lymington M.R., when he said, ante, p. 18D-E:
I see nothing incongruous in doctors and others who have a caring responsibility being required to act in relation to an adult who is incompetent to exercise a right of choice in exactly the same way as would the court or reasonable parents in relation to a child, making due allowance, of course, for the fact that the patient is not a child, and I am satisfied that that is what the law does in fact require.
In Re MB (an adult: medical treatment) [1997] 2 FCR 541 at 555 I said:
'Best interests are not limited to best medical interests.'
In my judgment best interests encompasses medical, emotional and all other welfare issues.
Another question which arises from the decision in Re F is the relationship of best interests to the 'Bolam test'. Doctors charged with the decisions about the future treatment of patients and whether such treatment would, in the cases of those lacking capacity to make their own decisions, be in their best interests, have to act at all times in accordance with a responsible and competent body of relevant professional opinion. That is the professional standard set for those who make such decisions. The doctor, acting to that required standard, has, in my view, a second duty, that is to say, he must act in the best interests of a mentally incapacitated patient. I do not consider that the two duties have been conflated into one requirement. To that extent I disagree with the passage in the Law Commission's Report on Mental Incapacity (Law Com No 231) (1995) p 43, para 3.26 and I prefer the alternative suggestion in footnote 40. In any event, in the case of an application for approval of a sterilisation operation, it is the judge, not the doctor, who makes the decision that it is in the best interests of the patient that the operation be performed.
The concept of best interests relates to the mentally incapacitated person.
Lord Jauncey in Re F said ([1990] 2 AC 1 at 83, [1989] 2 All ER 545 at 571):
'In the case of a long term incompetent, convenience to those charged with his care should never be a justification for the decision to treat.'
Connell J, in Re Y (mental incapacity: bone marrow transplant) [1997] 2 FCR 172; sub nom Re Y (mental patient: bone marrow donation) [1997] Fam 110, held that the fact that the donation of bone marrow by a mentally incompetent woman to her sister would save the sister's life, was not relevant unless as a result of that donation the best interests of the donor were served. The extent to which, if at all, the interests of third parties should be taken into account, other than their effect on the welfare of the patient, was not explored in depth in submissions addressed to us. Mr Levy mounted an argument in his skeleton argument that the judge was wrong to ignore the effect on 'third party interests' (eg the child and/or the young woman). It was only briefly pursued in oral argument. On the facts of this case, that argument was not well-founded. The concerns of the mother of A and Dr Campbell can be seen as relating as much, if not more it seems to me, to the protection of vulnerable women from the unintended consequences of sexual intercourse with A and the undesirability in the public interest of allowing a pregnancy or a birth to occur, as they do to the best interests of A himself. Those are understandable concerns in the wider context of society but are not relevant in themselves to the issue before this court. Social reasons for carrying out of non-therapeutic invasive surgery is not part of the present state of the law. With the direct application of the European Convention on Human Rights to English domestic law imminent, the courts should be slow to take any step which might infringe the rights of those unable to speak for themselves. The facts of Re D (a minor) (wardship: sterilisation) [1976] Fam 185, [1976] 1 All ER 326 demonstrate the dangers of well-meaning professionals of different disciplines confusing the welfare of the child with social considerations. I agree however with Thorpe LJ that the question whether third party interests should ever be considered in a case concerned with the best interests of a patient ought to be left open.
An operation to sterilise has to be demonstrated to be in the best interests of the person unable to consent. The case has to be proved. Prior to the decision in Re F there were several reported decisions on sterilisation of girls under 18. In Re D (a minor) (wardship: sterilisation) [1976] Fam 185, [1976] 1 All ER 326 a girl of 11 suffered from Sotos Syndrome which covered a variety of problems and her mother, the consultant paediatrician and consultant gynaecologist agreed that she should be sterilised. An educational psychologist challenged the decision to operate and D was made a ward of court. Heilbron J, with the welfare of the child as the paramount consideration, confirmed the wardship and refused to approve the operation. She held that the proposed operation involved the deprivation of a woman's basic human right to reproduce and was, on the facts, premature. In Re M (a minor) (wardship: sterilisation) [1988] 2 FLR 497 Bush J approved the carrying out of the operation on a 17-year-old ward with a mental age of five. In Re P (a minor) (wardship: sterilisation) [1989] 1 FLR 182, Eastham J gave leave in similar circumstances to Re M (a minor) (wardship: sterilisation) in respect of a 17-year-old ward.
In Re B (a minor) (wardship: sterilisation) [1988] AC 199, [1987] 2 All ER 206 the House of Lords approved the sterilisation of a 17-year-old girl with a mental age of six who would not be able to understand the causal connection between sexual intercourse and childbirth nor the nature of pregnancy.
Since Re F there has been a number of first instance decisions. In Re W (an adult: sterilization) [1993] 2 FCR 187 Hollis J approved the operation to sterilise a 20-year-old mentally incapacitated woman with severe epilepsy. There was evidence accepted by the judge of the detrimental effect of pregnancy and the Official Solicitor did not actively oppose the application. In Re LC (medical treatment: sterilisation) (1993) [1997] 2 FLR 258, Thorpe J dismissed the application by a local authority in respect of a 21-year-old woman with an intellectual age of three and a half living in a specialist residential home. She had previously been indecently assaulted in a different home with less good standards of care. In her present home there was a high level of supervision and minimal risk for the future. The Official Solicitor and the key social worker opposed the application. In Re X (adult patient: sterilisation) [1999] 3 FCR 426 Holman J granted the declaration in respect of a 31-year-old woman who was severely mentally retarded. The application was supported by the Official Solicitor.
It is clear from the outline of the cases to which I have referred above that, whether the application was concerned with an adult or with a child, the decision of the court was made in the best interests of that person and that principle was applied to the individual facts of each case.
An application on behalf of a man for sterilisation is not the equivalent of an application in respect of a woman. It is not a matter of equality of the sexes but a balancing exercise on a case by case basis. There are obvious biological differences and sexual intercourse for a woman carries the risk of pregnancy which patently it does not for a man. Indeed there is no direct consequence for a man of sexual intercourse other than the possibility of sexually transmitted diseases. There may be psychological consequences for him in pregnancy or in the birth of his child. He may be required to take responsibility for the child after birth and may, in certain circumstances attract disapproval and criticism. In the case of a man who is mentally incapacitated, neither the fact of the birth of a child nor disapproval of his conduct is likely to impinge on him to a significant degree other than in exceptional circumstances. His freedom of movement might in certain instances be restricted and consequently his quality of life might be diminished. It is possible that there may be other disadvantages to the person concerned which might lead a court to decide to approve the operation. It may be necessary to evaluate the nature and degree of risk attached to approval of or refusal to approve the operation to sterilise. But the task in each case is to balance all the relevant factors and to decide what are the best interests of the person unable to make his own decision.
In the present appeal it is necessary to focus upon the best interests of A himself. It is clear from the evidence of his mother that, as long as she cares for him, he will continue to be subjected to the present regime of close supervision. The refusal to approve the operation will inevitably upset A's mother but her care of him will not be diminished nor will he be aware that she is upset. If sterilisation did take place, it would not save A from the possibility of exploitation nor help him cope with the emotional implications of any closer relationship that he might form. It is also clear from the evidence of those who care for him in the day centre that the level of supervision does not depend upon his fertility. His mother has raised her concerns with them over inappropriate behaviour with women attending the day centre. The supervisors stop inappropriate behaviour because it is conducted in a public place and, it would appear, will continue to do so whether or not he has the operation. From my understanding of the evidence, Dr Campbell's assessment of the present supervision of A is incorrect and that the operation will not free him to enjoy a more relaxed regime. When in due course he goes into local authority care, the degree of freedom might be affected by the fear that he might form a sexual relationship with another resident. It would however, in my view, be likely that the woman concerned would be the object of protection rather than A. If his quality of life were, however, to be diminished, that would be a reason to seek at that time a hearing before a High Court judge to grant a declaration that sterilisation would then be in A's best interests.
I would dismiss the appeal.
JUDGMENT-2:
SCHIEMANN LJ. I have had the advantage of reading the judgments of Dame Elizabeth Butler-Sloss P and Thorpe LJ in draft. I agree with them that on the evidence which was led the case for authorising an invasive operation on this patient was not made out.
I would also dismiss this appeal.
JUDGMENT-3:
THORPE LJ. I have had the advantage of reading in draft the judgment of Dame Elizabeth Butler-Sloss P. I agree that this appeal must be dismissed and I agree with all that she says. In relation to whether the interests of others may legitimately be regarded in the application of a best interest test, the point was not fully argued in the present appeal and I would prefer to leave it open.
When I first read the papers I was by no means sure of my conclusion. I had doubts as to whether the judge, in rationalising his refusal of sterilisation, had focused sufficiently on what for me is the crucial aspect in an evaluation of A's best interests. I also considered that the judge had elevated some minor and some highly speculative considerations into material factors pointing to refusal. However the process of oral argument has demonstrated to me that the judge was clearly right in his conclusion. Furthermore since neither counsel referred to the judgment below in their oral argument it is unnecessary for me to attempt any critical analysis of the judge's reasons. In weighing the rival submissions advanced in our court I bear in mind in any event that however he expressed himself the judge saw and heard the witnesses and arrived at a discretionary conclusion in what was obviously a finely balanced case. In those circumstances the restrictions on our function are too well-known to require more than acknowledgement.
In the evaluation of A's best interests the area that I have referred to as crucial is A's sexuality and procreative function. Dr Campbell in his report of November 1993 recorded 'his proneness to masturbate when aroused by pictures of unclad women'. On the same page he expressed these opinions:
'It would therefore not be appropriate to restrict him to such an extent that sexual intercourse with a female partner was not possible. Indeed it is likely that A would enjoy and thereby benefit from such a relationship.'
In his oral evidence Dr Campbell expanded this point. A's fertility is of no advantage to him. On the contrary it is a positive disadvantage in that it obliges his carers to subject him to a level of supervision that unnecessarily restricts his liberty and prevents him from experiencing a fuller relationship extending to both sexual activity and intimacy with a woman. He therefore concluded that the operation was in A's best interests.
In offering the contrary opinion in his oral evidence Dr Holland acknowledged that the difference between himself and Dr Campbell was really one of balance. Dr Holland felt that the extension of A's sexual experience could be managed by specialist counselling provided if and when A's carers detected the first signs of developing closeness to a woman. Although the judge did not make any findings in relation to the evidence of the experts he inferentially preferred the evidence of Dr Holland whose opinion is consistent with the judge's reasoning.
Judged from Dr Campbell's written reports and from the transcript of their oral evidence my preference would be for the opinion of Dr Campbell. I share his view that A's fertility is of no advantage to him but of real disadvantage. In our society vasectomy has become the preferred method of contraception for many males who wish to separate their sexual and procreative functions. The obligation of society is to minimise the consequence of disability by vouchsafing for the disabled wherever possible the rights and freedoms vouchsafed to the majority who have been spared disability. If there are opportunities of replacing with reality the fantasies that stimulate A's isolated masturbatory sexual activity then they should be grasped. Of course it might be said that Dr Campbell's assumption that sexual intercourse with a female partner would be likely to prove enjoyable for A might be said to be optimistic. Any balanced appraisal must recognise the possibility of painful experiences such as the ending of the relationship in circumstances which A might not comprehend or which might cause him distress. That said my conclusion is that Dr Campbell's expert evidence provided a foundation upon which other evidence might have been laid in the construction of a successful outcome.
However supportive evidence from A's carers was either not established or not called. When cross-examined by Mr Francis QC A's mother effectively conceded that there would be no relaxation in the level of supervision were a vasectomy performed. As she explained that was a consequence of her basic distaste for sex outside marriage. As well as the control which she was able to exert within her own house she would not accept a placement at a home or day centre that adopted a permissive attitude to sexual intercourse between disabled people in their care.
The claimant called no evidence from A's other carers and the evidence as to the practice of the day centre and the respite home came from attendances taken by the Official Solicitor's representative. Those attendances clearly demonstrate that their present practice is to prevent sexual intercourse between disabled people in their care by watchful supervision. Therefore in my judgment the crucial missing piece in the construction of the evidential jigsaw was evidence from A's mother and/or from A's alternative carers that, whether nor not in reliance on Dr Campbell's expert evidence, supervision post vasectomy would be at a reduced level and opportunities for A to develop sexual experience and intimacy with a woman countenanced. Clearly the onus is on the claimant to establish that the vasectomy would be in his best interests. In my opinion the construction of the positive case was incomplete. Furthermore Mr Francis has a powerful additional submission that in any event A's general level of disability renders him too vulnerable to allow any relaxation in present levels of supervision.
I was less impressed by Mr Francis' submission that Dr Holland's proposal for specialist counselling provided an effective alternative to contraception by surgery. On that issue the opinion of Dr Campbell strikes me as more realistic. I would also be cautious in giving weight to what the judge in an exchange with Dr Campbell called the 'floodgates argument'. Mr Francis had put to Dr Campbell that his primary contention in relation to A would apply equally to anyone with A's level of learning disability. Dr Campbell's only answer to that was that A belonged to a relatively small class. However it seems that the point did not figure in submissions or judgment in the court below. It was only briefly deployed before us. A's application must be judged on the best interests test. A contention that a decision in recognition of his best interests would pave the way for others seems to me of doubtful relevance. After all any future applicant would succeed not because A had succeeded but because he had demonstrated on the facts peculiar to his case that the order would be in his best interests. It is to be noted that since the declaration in favour of operation in F's case only about four applications a year have been issued. Of course more will have been screened out by the Official Solicitor's investigation and advice but Mr Levy QC told us that that additional figure is not significant.
I turn from the outcome in the present case to some more general observations. There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal. The speeches in Re F (mental patient: sterilisation) [1990] 2 AC 1; sub nom F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 read in their context can only bear this interpretation: see particularly the speech of Lord Goff ([1990] 2 AC 1 at 77, [1989] 2 All ER 545 at 567). Subsequently the Law Commission in their 1995 report on mental incapacity recommended an extensive evaluation of best interests: see para 3.28. The latest statement of government policy in Making Decisions shows that the government currently accepts the Law Commission's recommendation: see para 1.10. Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant.
An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.
I suggest this approach only because Sumner J's judgment in the present case seems to me to concentrate too much on the evaluation of risks of happenings, some of which seem to me at best hypothetical. A risk is no more than a possibility of loss and should have no more emphasis in the exercise than the evaluation of the possibility of gain.
In conclusion although I agree that this appeal must be dismissed I would like to emphasise that its failure does not preclude a fresh application in the future on fresh evidence. It would be impossible not to have the greatest sympathy for the disappointment of A's mother at the outcome of her sincere and well founded application. Her determination to plan for the future deserves the fullest support.
Appeal dismissed. Permission to appeal to the House of Lords refused.
Cook Taylor
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