ABSTRACT
In Part I of this book, we examined the English courts’ approach to the difficult question of when a court might decide that it is in the best interests of an incompetent mentally handicapped person or intellectually disabled person to authorise sterilisation of that person. The inability of the patient to decide for herself could be the result of a lack of capacity because she is a child, in the sense of being below the age of majority, or because of a mental incapacity, such as a mental age of four or five, although biologically and physically an adult; or, as we have seen, because a child lacks the necessary maturity or ‘Gillick competence’ to make a legally valid decision. As we also saw, English law can only authorise the sterilisation of an adult ex post facto and only if it is in the best interests of that patient. We now examine how other jurisdictions have dealt with this issue and, while noting various jurisdictions, we shall concentrate on the USA and Australia (for common law jurisdictions) and discuss the latest developments in Germany and Scotland as examples of countries with a civil (Roman) law heritage.
