Does the Mental Capacity Act 2005 Adequately Protect Persons with Learning Difficulties Against Needless Non-Consensual Sterilisation?

Abstract

Non-consensual contraceptive sterilisation of people with learning difficulties is inherently controversial. As such any legal framework that provides for such a procedure needs to rigorously scrutinised in terms of its adequacy to protect vulnerable people. This article aims to ‘determine whether the post-MCA judicial approach adequately protects adults with learning difficulties against needless nonconsensual contraceptive sterilisation’. This will be achieved by assessing how the MCA has changed the judicial approach to non-consensual contraceptive sterilisation since the common law approach. Further comparisons will also be made between sterilisation and vasectomies. The capacity section will determine whether the judiciary are approaching the capacity assessment in a proactive way that aims to uphold autonomy where possible. The best interests section will determine whether the judiciary is adopting an approach that sincerely promotes the patient’s best interests and genuinely upholds the least restrictive principle or whether their protection is undermined by a risk of prejudice, insincere motives and subjectivity. Finally, The human rights section will assess whether any Articles within the European Convention on Human Rights can offer patients reliable protection against needless sterilisation.