An article for physicians by physicians
Originally published April 2010 W10-001-E
In the case of E. (Mrs.) vs. Eve (1986), the Supreme Court of Canada established limitations related to therapeutic sterilization of mentally incapable (incompetent) patients.
Of interest to all physicians
In the landmark case of E. (Mrs.) vs. Eve (1986), the Supreme Court of Canada set limits on the non-therapeutic and therapeutic sterilization of mentally incapable (incompetent) patients.1 While that case was decided more than 25 years ago, those limits still apply to medical practice today.
In the 1960s, the mother of Eve petitioned the courts to allow the sterilization of her daughter, known by the pseudonym Eve. The mother was almost 60 years old and a widow. Eve was 24 years old and mildly to moderately intellectually disabled. Eve did not understand the "consequential relationship between intercourse, pregnancy and birth," and was considered incapable of providing consent to sterilization.
Eve lived much of the time at a special school, and there had been concern that she was developing a close relationship with a male student. Eve's mother feared Eve would at some point become sexually active and pregnant, with no one in the family able to assume responsibility and care for the resulting child. Any offspring would likely become wards of the province.
After a lower court decision refusing the request for sterilization and an appeal decision allowing it, the case was heard by the Supreme Court of Canada and decided in 1986.
The Supreme Court considered issues such as: What was in Eve's best interest? Who can give consent for medical and surgical treatment of a mentally incapable person? What are the interests of society?
In the judgment,2 the Court declared that sterilization should never be authorized for mentally incompetent persons for non-therapeutic purposes. Non-therapeutic here means the sterilization is for the purpose of contraception; therapeutic means the sterilization occurs as a consequence of the treatment of a disease.
As well as applying to Canadian courts, this Supreme Court decision must be interpreted to also prohibit the ability of a parent or a substitute decision maker to authorize the sterilization of a mentally incapable person3 for non-therapeutic reasons.
The Supreme Court made it clear that patient autonomy, not necessarily what might be considered to be in the best interests of the patient, must be the physician's overriding consideration in the context of non-therapeutic sterilization. "In the absence of the affected person's consent, it can never be safely determined that [non-therapeutic sterilization] is for the benefit of that person." The integrity of a mentally incapable patient's body takes precedence over the desires of her parents or substitute decision maker, or the financial concerns of society. Sterilization without a sound medical indication infringes on that integrity.
From the judgment…
"The importance of maintaining the physical integrity of a human being ranks high in our scale of values, particularly as it affects the privilege of giving life. I cannot agree that a court can deprive a woman of that privilege for purely social or other non-therapeutic purposes without her consent. The fact that others may suffer inconvenience or hardship from failure to do so cannot be taken into account."
For mentally incapable persons, the Supreme Court emphasized that utmost caution must also be exercised in deciding when sterilization procedures might be appropriate for therapeutic (medical) reasons.When medical benefits are marginal, they must be weighed carefully against what is seen as a grave intrusion on the physical and mental integrity of the person. Such procedures should be performed only in the case of some diseases when there are sound medical indications. For example, hysterectomy may indeed be in the patient's best interest in dealing with a uterine cancer. Sterility would then be a result of the therapeutic treatment but not the primary goal.
The Supreme Court cautioned against spurious attempts to justify a procedure that will result in sterility. The Court referred to a Canadian case in which a hysterectomy was ordered performed on a seriously mentally incapable child because of concerns the child's phobic aversion to blood might seriously affect her psychologically when menstruation began. The Supreme Court noted this case was at best dangerously close to the limits in justifying a therapeutic sterilization.
Why is this decision important?
The Eve decision by the Supreme Court of Canada applies in two situations:
Requests for non-therapeutic sterilization (not indicated for medical reasons)
Because of concerns about sexual activities, parents or substitute decision makers responsible for a person mentally incapable of providing consent may ask a physician to sterilize the person. They believe they are acting in the interests of the person.
Although the Eve decision was about the sterilization of females (e.g., tubal ligation), the same limitations would be expected to apply when dealing with requests for sterilization of males (e.g., vasectomy) who are mentally not capable.
Requests for non-therapeutic sterilization should be refused. Compliance to sterilization in these circumstances will expose a physician to serious medico-legal difficulty. Even when the parents or guardians of a patient have consented to the procedure, other parties can initiate legal actions or complaints to a regulatory authority (College) on behalf of the mentally incapable patient.
It is important to document these discussions in the medical record.
Therapeutic (medically indicated) sterilization
If a mentally incapable patient has a condition that might be best treated by an invasive procedure or other treatment, and that procedure or other treatment is likely to also cause sterility, all options should be considered. Even after confirming that less invasive treatments were attempted and failed, or are contraindicated, it may be wise to consult with other physicians. This may result in other options being considered, or may confirm your assessment and recommendations.
It is very important to document all these discussions and consultations in the medical record so the rationale for what was done can be confirmed at a later date.
When faced with difficult issues such as these, CMPA members should contact the Association for advice.
1 A person who is able to understand the nature and anticipated effects of a proposed treatment and available alternatives, and appreciates the consequences of refusing treatment, is generally considered to have the necessary capacity (competence) to give valid consent.
2 http://scc.lexum.umontreal.ca/en/1986/1986rcs2-388/1986rcs2-388.html, last accessed February 12, 2010.
3 A substitute decision maker is a person who is legally authorized to make decisions on behalf of the patient. This authority may be granted through a legal document such as an advance directive, by legislation, or by the courts.