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Mental capacity and the ability to make decisions about the termination of a pregnancy

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Landmark legal ruling changes the way professional bodies deal with their members

In the recent landmark Court of Protection case of AB (termination of pregnancy), Re [2019] EWCA Civ 1215, the Court of Appeal had to decide whether it would be in the best interests of AB, a learning disabled woman, to provide the consent necessary in order for a proposed termination of her pregnancy to take place.

The case concerned a 24 year old woman (known throughout as AB) who has moderate learning difficulties and functions at a level of between six and nine years old.

The facts of this case are tragic. AB lived with her adoptive mother (known throughout as CD). AB had gone to stay in Nigeria with family at the end of 2018, and in unknown circumstances had fallen pregnant whilst in Nigeria. The pregnancy was discovered by CD upon AB’s return from Nigeria in April 2019.

Capacity assessments were subsequently undertaken in May 2019 and it was deemed that AB lacked the capacity to decide whether or not to continue with the pregnancy.

CD was extremely against the termination of the pregnancy, due to her religious and cultural beliefs. When AB was around 16 weeks pregnant, CD arrived at hospital with AB and her belongings and informed staff that she was handing over the care of AB, as she felt she would be unable to support AB in having a termination.

The NHS Foundation Trust felt it would be in AB’s best interests for the pregnancy to be terminated, however, as CD disagreed with the view of the doctors, the Trust made an application to court.

The case was heard before Lieven J at first instance; An NHS Foundation Trust v AB & Ors [2019] EWCOP 26. At this time, AB was approaching 23 weeks pregnant, meaning that there was an urgency to the decision due to the limitation for termination of pregnancy being 24 weeks gestation, as set out under the Abortion Act 1967. Lieven J concluded that it was in AB’s best interests to have a termination and held that the possible harm from a termination would be outweighed by the harm from continuing the pregnancy. The two psychiatrists believed that AB would be distressed and traumatised by the almost inevitable removal of her baby from her care. Expert opinion was also provided that it would be unsafe for AB to live in the same household as the baby. CD therefore sought permission to appeal the decision of Lieven J and permission was granted.

Due to the urgency of the decision to be made, the appeal was convened on two hours’ notice, and less than twenty four hours before the termination was due to be performed. The appeal was heard by Lady Justice King in the Court of Appeal.

Lady Justice King referred to Section 1 of the Abortion Act 1967 in her judgment. Section 1 provides:

“ 1.  Medical termination of pregnancy

Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith–

  1. that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
  2. that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.”

It was argued that AB’s case fell within Section 1(1)(a), as doctors formed the view that continuing the pregnancy involved a greater risk to the mental health of AB, than if the pregnancy was to be terminated. The doctors were united in their view, contrary to the view of CD, and therefore the court was to consider whether it would be in the best interests of AB to provide the consent necessary in order for the proposed termination to take place.

At paragraph 76 of the written judgment, Lady Justice King stated that “The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB’s wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB’s feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB’s feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes.”

At paragraph 79, Lady Justice King stated “To this I add that I also have in mind that the judge made her decision having heard the oral evidence and having written a careful and thoughtful judgment produced under considerable pressure of time. However, in my judgment, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB’s rights represented by the non-consensual termination of this advanced pregnancy. ”

Section 4(6)(a) of the Mental Capacity Act 2005 requires those acting or deciding in a person’s best interests to consider, amongst other matters “the person’s past and presents wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity”.

AB had been brought up in a community strongly opposed to termination, due to cultural and religious beliefs. At first instance, it was held that as AB had never had mental capacity, the views and beliefs of the community should not be imported into the best interests analysis. However, the Court of Appeal held that Lieven J had fallen into error as she had failed to take sufficient account of AB’s wishes and feelings in the balancing exercise of her best interests. The failure to have regard to the views of the beliefs of her community would amount to speculation that AB may have rebelled “against the tenats of her community by the time she reached her twenties”. The Court of Appeal also considered that insufficient regard had been paid to the views of CD, who knew her best.

Lady Justice King concluded that the judge’s decision at first instance was based predominately on medical factors, and the non-medical factors of the case were not given sufficient regard. It was held that the declarations permitting the termination to take place were to be set aside, meaning that the consent necessary in order for the proposed termination to take place would not be granted. Accordingly, it was held that the declaration that it was in AB’s best interests to undergo a termination should be overturned.

The Court of Appeal stressed the importance of applications in termination cases to be treated with utmost urgency by treating clinicians and court listing officers, and should there be any situation or future case where an application to the court to obtain consent for a patient to undergo a termination is necessary- the NHS Trust should make an urgent application to the court without delay.

By Eleanor Roscoe, graduate paralegal