In the case of A Local Authority v Mrs A and Mr A[2010] EWHC 1549 (Fam), Mr Justice Bodey rejected the LA’s submission that capacity to decide on contraception includes awareness of what is actually involved in caring for, and committing to a child. It was held that this set the bar too high and the test for capacity should relate only to the woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment.
In EE (Capacity: Contraception and Conception) Re [2024] EWCOP 5, Mr Justice Poole agreed with the need to not set the bar too high, stating:
‘There are reasons to avoid setting the bar too high for capacity to make decisions about the use of contraception…Daily, in GP surgeries and clinics, women make decisions about contraception without considering the risks to them or to the health of their baby if they were to get pregnant. The risk of becoming pregnant following intercourse is a core piece of relevant information, but not all the many and varied risks which may be consequent on becoming pregnant. Some may envisage all manner of risks, others will not do so”.
The court emphasised the importance of not infringing on EE’s autonomy and rights to make decisions about her body and reproductive health.