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.