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Termination of pregnancy and the Court of Protection

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The recent case of S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10 concerned 38-year-old S, who had a diagnosis of bipolar affective disorder. On 28th  February 2022, at the time of these very urgent proceedings, S was already 23 weeks pregnant and had been detained under section 3 of the Mental Health Act. The issue for the court was whether S had capacity to consent to undergoing a termination of pregnancy.

S was a modern languages graduate from the University of Cambridge and had expressed a strong wish to become a mother before the age of 40. S felt like her time was slowly running out, and the breakdown of her previous relationship had led to her decision to conceive a child through IVF in October 2021. However, the deterioration of her mental health and subsequent sectioning in January 2022 led her to begin to express doubts about the continuation of her pregnancy.

In assessing S’s capacity to decide, the healthcare trust posited that S could not ‘use and weigh the information relevant to her decision’, as per section 3(1)(c) of the Mental Capacity Act 2005. In determining S’s best interests, a meeting on the 18th February 2022 concluded that S lacked capacity to consent to the termination of her pregnancy, and that ultimately, a termination would not be in her best interests due to the possible postnatal psychological risks to her mental health.

However, Her Honour Judge Hilder carefully analysed the capacity assessment evidence provided. She held that there was no clear identification of the information considered to be relevant to the process of S deciding whether to have an abortion. In her discussion, she held that the relevant information for the purposes of assessing whether S lacked capacity to decide to undergo a termination should not have been solely based on the pathological risks to her mental health. Instead, she concludes, the relevant information that the medical bodies should have conveyed to S was:

  1. What the termination procedures involve for S;
  2. The effect of the termination procedure / the finality of the event;
  3. The risks to S’s physical and mental health in undergoing the termination and;
  4. The possibility of safeguarding measures in the event of a live birth.

Her Honour Judge Hilder was not satisfied that the statutory presumption of capacity had been rebutted and pointed to the failings in the assessment undertaken by the NHS clinicians. Whilst she did in fact concede that aspects of S’s ability to use and weigh had been distorted due to her bipolar diagnosis, acknowledging S’s past wishes and feelings to become a mother, she concluded that S did in fact have ‘enough pieces of the jigsaw to see the whole picture’ in respect of her ability to consent to terminating her pregnancy.

This case is symbolic of the urgency of some Court of Protection cases. In addition, the gravity of a medical procedure such as terminating a pregnancy in S’s best interests illustrates how important it is that a capacity assessment is undertaken in accordance with the correct legal principles. The decision as to whether someone has or lacks capacity can be very finely balanced and require very careful consideration. If S had been incorrectly found to lack capacity, this would have taken this very major decision of whether to terminate the pregnancy out of her hands; the decision would have been made to terminate the pregnancy on her behalf.

Our Court of Protection team has specialist solicitors with a great deal of expertise and experience in analysis of and challenging capacity assessments. Should you require any advice or assistance in respect of a mental capacity issue, please do not hesitate to contact our specialist Court of Protection and community care team who have extensive knowledge and expertise in this area, on 01616 966 229.

By Matthew Ross, Graduate Paralegal, Court of Protection and community care team