EE (Capacity: Contraception and Conception), Re [2024] EWCOP 5

Judgment about EE's capacity around contraception, sexual relations and contact with others. ​

EE is a 31 year old woman with tuberal sclerosis, a schizophrenia type disorder and a history of drug taking currently in a supported living placement where she is prompted to take medication. She has previously terminated a pregnancy but expresses a desire to have a child. 

In this judgment, Poole J reviews the evidence from two experts and the law governing consent to sexual relations, in particular the Supreme Court's decision in JB. He notes the case law requires the bar is not set too high and decisions about capacity should not blur into best interests about P or the unborn child: fully capacitous adults often conceive where there are risks to the mother and / or unborn child. He splits his analysis and conclusions in two: sexual relations/contact and contraception. On the first he concludes EE has capacity to decide on sexual relations but not contact with others (a position reflected in JB). On contraception  he states

"The freedom to make decisions about conceiving and having children, subject to the unavoidable restrictions imposed by biology, is a fundamental part of anyone’s Article 8 right to respect for their private and family life and, in my judgment, it would be irrational, unnecessary, and an unjustified interference with EE’s Article 8 rights, to find that she has no capacity to make decisions about conception on the grounds that she cannot understand, retain, or weigh or use that same information."

Read the judgment on The National Archives