Mental Disability, State Power And The Capacity To Decide
The issue of forced contraception raises difficult questions about autonomous decision making under the Mental Capacity Act
By Wayne Martin
Can the state force a mentally disabled woman to use contraception? How should a judge decide whether a woman in an abusive relationship has the capacity to make decisions about her own body? What is the role played by other people when we make a decision for ourselves?
Recent weeks have seen the first spate of judicial rulings under the landmark Mental Capacity Act. The act was adopted by parliament in 2005, and came into effect in 2007, but it is only now that the first cases are testing key provisions of the new legal world it establishes.
The disturbing case of Mrs A explores troubling questions about procreation and power in the context of mental disability and domestic violence. It raises deep and difficult questions about just what it means for individuals to make decisions for themselves.
Mrs A suffers from a significant learning disability; court papers document that her IQ is in the bottom one percentile of adults of her age.
Prior to meeting her husband, she had twice become pregnant. Although she insisted that she would be a good mother, a pre-birth assessment in each instance concluded that she lacked the insight to meet her baby's needs without intensive support. Under court order, her two infants were removed at birth. After the second pregnancy, Mrs A herself came under a guardianship order and began using contraception, administered by a monthly injection.
Mrs A met Mr A in 2007; they were married in 2008. Mr A also falls in the bottom one percentile in IQ. It soon became clear that the question of children was a vexed one in the relationship. Court documents record that Mrs A told a number of acquaintances that she did not want children; it is evident that Mr A did. Their relationship also seems to have become abusive, with Mrs A regularly reporting that her husband had hit or punched her, or would shout and break household items. At times she was afraid to go home. She showed up at her college showing bruises on her arms.
Mr A became increasingly insistent that Mrs A should not continue her contraceptive injections, and moreover should not be in touch with representatives of social services. At times he actively prevented her from contact. When social services did come to their place of residence, Mr A prevented them from speaking to Mrs A alone. In Mr A's presence, Mrs A indicated that she no longer wished to use contraception. She signed a letter, written by Mr A, indicating that she no longer wished to be contacted by social services. She stopped going to college, apparently because Mr A objected to the fact that her course co-ordinator facilitated contact with social services, who he viewed as "interfering in our sex life" and prying into private family affairs.
Finally, the court of protection became involved. Last September, the local authority asked the court to declare that Mrs A lacked the mental capacity to determine, among other things, whether she should be administered with contraceptive devices.
Mental health legislation has, in recent decades, undergone a tectonic shift. There was a time when the chief legal question applied to the mentally disabled was, in effect: "Is this individual a danger to himself or to others?" If the answer was affirmative, the individual in question was a candidate for "sectioning", which in many cases meant involuntary confinement and treatment.
The state is still in possession of those longstanding powers, but in recent years a separate question has come to centre stage. A series of court rulings in the 1990s held that all adults, including mentally disabled adults, have a right to refuse medical treatment, as long as they are possessed of the mental capacity to do so. If you have mental capacity, then you enjoy an absolute right to refuse treatment; if you are found to lack mental capacity, then the state can intervene to protect your best interests.
The new legal approach marked a shift towards a human rights perspective in mental health legislation. But it also placed a novel question before the courts: under what circumstances does an individual have the capacity to make his or her own decisions? The Mental Capacity Act established the framework under which this question is addressed.
Testimony in court was sharply divided on the question of Mrs A's capacity. One expert testified that Mrs A did have the requisite capacity to make decisions about contraceptives, on the grounds that she understood the nature, variety and purpose of contraceptive treatments. A second expert was of the opinion that Mrs A lacked the requisite capacity: although she could explain the nature and function of contraception, she lacked an understanding of the implications of achieving a pregnancy and had little insight as to her capacity to rear a child.
The judge faced a hard decision and his judgment shows the traces of his ambivalence. In the end, he ruled that Mrs A lacked the capacity to make decisions about contraception, citing as the crucial factor "the uneven relationship between Mr and Mrs A". Although Mrs A herself indicated in court that she did not want contraceptive devices, the judge found that this decision "was not of her own free will". But at the same time, he refused to grant the local authority the power it sought to administer contraceptive devices involuntarily. In practice, granting such a power would have authorised the police to enter her residence, sedate her if necessary and remove her to hospital for conceptive measures.
Mr Justice Bodey backed away from this legal precipice. In the end, he concluded, the best thing for Mrs A would be to foster the very capacity she presently lacks, so that she might develop the ability to make an informed decision about the matter for herself. The best way to achieve that end, he ruled, is for Mrs A to have access to the support she requires from others. In the final sentences of his ruling, the judge expresses his decision "to rely on Mr A to honour his assurances given to the court" – assurances that he would not in future prevent Mrs A from having access to support services.
The ruling raises a host of disturbing questions: about the limits of state power; about the best interests of mentally disabled individuals in abusive relationships; about the reliance of a male judge on assurances given by a husband with a history of violence. But it also raises questions about the nature of autonomous decision-making itself.
As the Mental Capacity Act comes to reshape the exercise of state power, courts and social welfare officers and medical professionals will increasingly face questions about when and under what conditions an individual's expressed decision can genuinely be said to be their own. As the case of Mrs A powerfully demonstrates, the ability to make decisions for oneself is not simply a matter of intellect or cognitive power; it can rise or fall with the enabling or obstructive relationships in which one finds oneself embedded.