Vasectomy and incapacity

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

DE was a 36-year-old man with a profound learning disability. Testing suggested that his IQ was 40. He could not live on his own; could not use money, had limited speech and was ‘…dependant on his parents to provide him significant support, both practical and emotional.’ Whilst he lacked capacity to make medical decisions, a court found that DE had ‘…prospered and achieved far beyond what might have been expected given his level of disability.’ He lived with his parents, and in the preceding 5 years had formed a longstanding and loving relationship with PQ, a woman who lived with a less severe learning difficulty. Their relationship was supported by both sets of parents and the local authority, culminating unexpectedly in the birth of a child. PQ’s disability prevented her from looking after her baby, so a Special Guardianship Order in favour of the maternal grandmother had been made, providing her with parental responsibility.

Considering the legitimate concerns that DE may not have capacity to consent to sexual relations (which in turn had led the families in the interim to ensure that DE & PQ were not left alone together), a judge concluded that sufficient safeguards were in place within the family structure to ensure that the local authority’s adult Protection Plan took a proportionate approach; so that any restriction or supervision of DE & PQ did not detract from his independence or disrupt their social relationship, given the importance to him of that bond.

DE was clear that he wanted no more children, but these safeguards caused him great distress. The relationship between DE & PQ ‘...nearly broke under the strain but remarkably weathered the storm.’ For this reason, his parents felt that it would be in his interests to have a vasectomy.

Evidence for the risk of chronic post-vasectomy pain had been provided by a consultant urologist at the NHS Trust, who concluded that ‘My personal view is that a vasectomy is probably not in his best interests, but if the court thought it was the right thing, I would be happy to carry out the procedure.’ The Trust sought declarations from the Court of Protection, including one relating to the lawfulness of vasectomy in DE’s case. The judge preferred the views of other professionals ‘…who know DE better and have experience of learning-disabled people and will be of more value to the court in assessing DE’s best interests’.

An earlier, definitive, judgment F v West Berkshire HA [1990] addressed considerable anxiety over the authorisation of involuntary sterilisation of incapacitated adults of either sex, grounded in historical spectres. The court in Re F observed that it was a ‘…startling fact’ that there was no previous English judgment on the lawfulness of medical treatment of incapacitated adults, let alone the lawfulness of sterilisation in these circumstances. In particular, without the approval of the Court. The concerns in Re F for the rights of those who cannot decide for themselves crystallised in the Human Rights Act 1998 and latterly the Mental Capacity Act 2005. It was with this in mind that the judge in DE’s case declared, having heard all of the evidence, that he lacked capacity to decide whether or not to consent to contraception, or to undergo vasectomy. And that it was lawful, and in DE’s best interests, for him to have this operation.

It may be that DE’s case was the first occasion in the English common law that vasectomy of an adult male incapable of providing consent was declared lawful. We have had two local enquiries since 2009 relating to the feasibility of performing vasectomy on the offspring of parents who are understandably anxious that their incapacitated adult sons do not impregnate their partners. In such circumstances, DE’s case illustrates how it is essential that the families are directed by the surgeon in the first instance to a solicitor, so that they can understand the ramifications underlying such a proposition. Not least, that approval of the court must be obtained first.

NHS Trust v DE [2013] 3 FCR 343

F v West Berkshire Health Authority [1990] 2 AC 1

Mr Robert Wheeler
Department of clinical law
April 2025