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Mental capacity and best interests in pregnancy termination

View profile for Katie Byrne
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The central issues in the recent Court of Protection case of Re H (An Adult; Termination) [2023] EWCOP 183[1]) concerned Ms H's capacity to decide to terminate her pregnancy and if she did lack capacity, whether a termination was in her best interests (and if so, whether medical or surgical termination should be carried out).

Ms H is 26 years of age and diagnosed with schizoaffective disorder and is detained in hospital under s3 Mental Health Act 1983.

The applicant NHS Trusts were seeking declarations from the Court of Protection that Ms H lacked the capacity to conduct legal proceedings and make decisions regarding the termination of her pregnancy. They also sought an order that a medical termination is in her best interests. There were two NHS Trust’s making the application as one of them was responsible for Ms H’s obstetric care and one was responsible for the care of her mental health.

With one exception, Ms H had been consistent in her wish to have a termination of the pregnancy. She was clear that she wanted rid of the pregnancy. She also met with the Judge via Microsoft Teams before the hearing and remained consistent in her wish.

No one disputed the evidence that Ms H lacked capacity to decide whether to terminate the pregnancy, and the Judge declared that she lacked the necessary capacity to make this decision herself.

The legal framework of the Abortion Act 1967 was considered and it had been determined by professionals that the termination was less than 24 weeks and continuing the pregnancy involved greater risk to her mental health than if the pregnancy were terminated.

An ultrasound on 5th October 2023 confirmed Ms H's 15-week pregnancy. Dr D emphasised the preference for a medical termination, citing lower risks to Ms H's mental health compared to surgical alternatives. Surgical termination, he noted, carried risks of heavy bleeding, infection, and uterine rupture. Crucially, Ms H expressed a strong desire for a medical termination.

The Judge had to apply s4 Mental Capacity Act 2005 in deciding (1) whether the termination was in her best interest and if so, (2) what form that procedure should take.

The Judge noted that she had a “sustained negative view of her pregnancy and a sustained wish for a termination” [para 116]. The Judge emphasised this being a deeply personal and profound decision for Ms H and attached significant weight to her wishes and feelings in reaching a decision in her best interests.

The medical professionals supported a termination of the pregnancy, also expressing concern about the risks to her mental health should the pregnancy continue.

The Judge determined that it was in her best interests for her pregnancy to be terminated.

The second decision to be made of what form the termination should take (medical or surgical) was more finely balanced and required careful consideration. Again, Ms H expressed strong wishes on the matter, that she was strongly against a surgical termination. Both kinds of procedures brought risks to her mental health (in addition to the risks to her physical health). The Judge decided to authorise a medical termination in her best interests.

The case highlights the legal intricacies surrounding best interests decisions in respect of pregnancy termination where someone lacks mental capacity to make that decision due to a mental impairment. Balancing the individual's wishes and medical evidence requires very careful consideration.

Should you require any advice or assistance in respect of mental capacity or best interests issues before the Court of Protection, please do not hesitate to contact our specialist team of Court of Protection solicitors on 01616 966 229 or by completing our online enquiry form.

By Katie Byrne, Paralegal and Sophie Maloney, Partner