The judge as medical ethicist

• Download figure
• Open in new tab
• Download powerpoint

D is 36 years old. He has a mental age of between 6 and 9 years and an IQ of 40. For the past 10 years he has enjoyed a loving relationship with a woman, P, who also has a learning disability.

Three years ago P became pregnant. The resulting child had such a disruptive effect on D and P that their relationship nearly fell apart. Neither parent was able to care for the child, and the council started care proceedings. So upset was D by the experience that he did not want any more children. Last year a court declared that D did not have the capacity to consent to sexual relations, and so D and P could meet only under supervision. This restriction led to a significant loss of independence for D.

To resolve the problem D’s parents considered the possibility of a vasectomy for D. The risk of chronic or severe scrotal pain from the vasectomy was 0.5%.

At the trial in July 2013 Mrs Justice Eleanor King, in the Court of Protection, was faced with this question: was it in D’s best interests to have a vasectomy?

The court consulted experts and found that D did, in fact, have the capacity to consent to sex but lacked the capacity to consent to contraception.

The court looked at several factors. It held that D was capable of forming independent views. The court was satisfied that D did not want to have another child. The court also found that D was “broadly in favour of the idea” of a vasectomy, although in the most recent session he said he would prefer to use condoms.

The court considered the possibility of D using condoms. Despite extensive training, D still struggled to put on a condom. An expert advised that the risk of pregnancy over 12 months if D used condoms was 18%. The court concluded that D’s use of a condom was “unreliable at best.”

The court rejected the possibility of P, D’s girlfriend, taking contraception, as she too was unreliable.

The court then turned its attention to the consequences of a further pregnancy. It examined the likely psychological distress to D but also to his parents. The judgment reads: “The court is not directly concerned with the interest of FG and JK [D’s parents], but it is concerned at how their levels of tension and distress impact on D’s welfare and comfort and it is clear that the impact is considerable.”

Finally, the court looked at the effect on D’s life if no vasectomy was performed. It held that, even though D had the capacity to consent to sex, D would still need to be closely supervised. This would not be in D’s interests. The judge noted that “all those who care for D want to see his previous independence restored so that he can once again go to meet a friend for coffee or stroll in town with his friends.”

The judgment then sets out the relevant law. As D lacks capacity to undergo a vasectomy, the court must act in his best interests. The court referred to the Mental Capacity Act 2005 and the requirement to consider all the relevant circumstances in determining best interests, as well as D’s rights as enshrined in article 8 of the European Convention on Human Rights (that concerning the right to respect for private and family life).

The court identified a tension within article 8. On the one hand, if D had the vasectomy, he would lose his ability to decide to become a genetic parent in the future. On the other hand, D had a right to respect for his autonomy (such as it is), and that included his decision not to have any more children and to have a sexual relationship with P.

After referring to relevant case law, the court concluded that “the evidence unequivocally points to an improvement in the quality of D’s life in the event that he has a vasectomy.”1 The judge concluded her judgment by listing the factors in favour of the vasectomy and balancing them with the factors against, namely the slender risk of surgical complications and the operation’s lack of protection against sexually transmitted infections.

It is, in my opinion, the ethically correct outcome, but the case struck me as having much pedagogical value in its careful, methodical, yet relatively succinct approach to the problem. The relevant background facts are presented in a manner that reflects the nuances of the case. So often, in medical ethics lectures or even in clinical ethics committees, the background facts are sparse. In my experience, most cases are factually messy.

The judgment examined the key factors in turn and supported its conclusions by reference to evidence. Too often, again, we rely on assumption rather than evidence. “What evidence do I have for this?” is a central question when conducting an ethical analysis.

In the judgment the relevant law, guidance, and precedents clarify the legal and ethical principles, and the balancing exercise of competing considerations is set out in a structured fashion.

It is unrealistic to expect students, or even clinicians, to possess the analytic skills of High Court judges, but why not aspire to such clarity of thought and analysis?

When I studied medical ethics I was never asked to read entire judgments, merely extracts. I wish I had. Judges are the most pragmatic of ethicists, combining law and ethics to arrive at a concrete answer. They cannot sit on the fence. They shun the obscure language of ethical theory. There is much about practical decision making that doctors and ethicists can learn from their judgments.