JFPRHC 2011: 37(3) (July)

An article about legal aspects of management of contraceptive decisions in the learning disabled.  Important points:

  • The key piece of legislation is the Mental Capacity Act 2005, which formalised existing case law and added new requirements.
  • Presume competence unless demonstrated otherwise.
  • Competence refers to the specific decision, not all decisions (so a person not competent to make one particular decision might nevertheless be competent to make a different one)
  • Serious decisions about health/other personal welfare matters are dealt with by the Court of Protection, who may appoint a deputy to act on behalf of a person who lacks capacity.  Rather bizarrely, when assessing a person’s ability to make decisions about contraception, the court will not take into consideration the individual’s understanding of what caring for a child involves.
  • If sterilisation or abortion are being considered for a person who lacks capacity and who has no-one to support or represent her, an Independent Mental Capacity Advocate must be appointed by the NHS trust.

About Dr Sarah

I'm a GP with a husband and two young children.
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