In a recent decision of the Court of Protection, Re SB (A patient; capacity to consent to termination)  EWHC 1417 (COP) 21 May 2013, Mr Justice Holman held that it had not been established that a woman, SB, undergoing treatment for bipolar disorder lacked capacity to make decisions about her desire to terminate her pregnancy and stated that he would either make a declaration to that effect or dismiss the proceedings. Comparison has been made with an earlier case Re P (abortion) (2013) MHLO 1 (COP)  in which a senior judge ruled that a pregnant woman with significant mental health impairments would not have to undergo an abortion as she had enough capacity to decide whether or not she wanted to become a mother.
Although the outcomes of the two cases were different and at first sight contradictory, both followed the application of the same logic, turning on the application of ss 1(2) and 1(4) Mental Capacity Act 2005 to s 1(1)(a) Abortion Act 1967. The principles relating to mental capacity are laid down in section 1 of the 2005 Act, which states that:
“(1) The following principles apply for the purposes of this Act
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”.
Summary of the two cases
Re P (Abortion) concerned a young woman, 18 weeks pregnant, who was in the “bottom one per cent of the UK population” in terms of her cognitive abilities. She had been born with the genetic blood disorder sickle-cell disease and the multiple strokes she suffered as a child had left her mentally impaired. Doctors had applied for an order to allow them to terminate her pregnancy claiming the child was endangering her life. Furthermore, the solicitor who was one of P’s deputies queried whether P had capacity in relation to a decision as to whether to continue with her pregnancy or have an abortion.
However, Hedley J held that whilst she manifestly lacked litigation capacity she did have capacity in relation to continuing the pregnancy; and the medical professionals concurred that she had the capacity to decide what she wanted to do in relation to the pregnancy. In addition, the court was told that she was supported by a loving family who looked after her and wanted her to press ahead with the pregnancy.
Hedley J noted that in general, courts and health officials should not try to decide whether or not P would be able to bring up a child but should concentrate solely on whether the pregnancy itself was in her best interests, i.e. her understanding and awareness that she was pregnant and this, of itself, might carry some risk to her health .
It was stressed that section 1(4) of the 2005 Act allowed people, including women with cognitive impairment, to make what others might view as unwise decisions if they had decision-making capacity. Section 4 of the Act forbids discriminatory assumptions about capacity based on age, appearance, condition or behaviour:
“t]he 2005 Act’s purpose is not to dress a person with cognitive impairment in cotton-wool but to allow them the right to make the same potentially unwise choices that all other human beings are able to make”.
In summarizing the key points in Re SB (A patient; capacity to consent to termination), Holman J stated inter alia that
“the entire reason why [the] proceedings have been issued … is because the mother concerned is herself very strongly indeed requesting a termination and giving her consent to it. The issue relates to her capacity. But if a termination does take place, it will only take place because she personally has strongly requested it and consents to it right up to the moment when the procedure begins,” [at 5].
“there is no question in this case, or indeed in any case, of a court, by order, requiring any doctor to perform an abortion or termination,” [at 6].
Holman J stressed [at 12] that
“[Re SB] could not be more fact specific. I endeavour to resolve it by a correct application of the law as enacted in the Mental Capacity Act 2005, but I wish to make very clear that, precisely because the case is so fact specific and also because I am giving this highly ex tempore judgment … I certainly do not seek or intend to create any precedent or to indicate any general proposition of the law or construction of the Mental Capacity Act 2005.
The case differed factually from Re P (Abortion) in that:
- unlike the majority of hearings of the Court of Protection, ‘SB’ was present in person. She was described as “… clearly a lady of considerable intelligence. She is well-educated, including having a degree, and she has worked at a relatively high level in demanding work in the field of Information Technology”.
- whereas “P” sought to continue her pregnancy, “SB” did not. “SB” had undergone a termination two years earlier, a decision she did not regret, and had taken steps towards a termination at an earlier stage of her present pregnancy.
- the court heard [at 35] that “[“SB’s”] husband has not been supportive of her and would not be supportive of her as a parent; and her perception also that her mother, and indeed also her father, do not and will not support her”, although they and the treating psychiatrist, Dr T, assert otherwise;
- “P” was 18 weeks pregnant whereas “SB” was 23 weeks pregnant: a factor primarily of medical importance regarding the procedure(s) that might be used but which in “SB’s” case, introduced a significant degree of urgency to the proceedings.
Holman J reached a different overall conclusion as to capacity from that of the psychiatrists, Dr T and Dr Smith, and also of the husband and the mother, [at 36 and 37]. His conclusion was based upon the provisions of the law, whereas the medical experts’ conclusion was based upon “evidence within their professional domain”, which he unreservedly accepted.
“SB” had expressed concerns regarding the manner in which her abortion might be carried out, [at 22], expressing a preference to the use of medication rather than surgery, although the method recommended in NHS Guidance is dependent on the stage of pregnancy at the time.
A notable point is that in both cases the courts assessment of the person’s capacity in law differed from that of the medical professionals who in one case advocated for an abortion and in the other against it. However, in Re SB Holman J stressed that in relation to section 1(2) of the Mental Capacity Act,
“… unless it is established, on a balance of probability, that the mother does not have capacity to make the decision that she undoubtedly has made, her autonomy as an adult to request and consent to the proposed abortion procedure is preserved,” [at 9].
In both cases, the mother was deemed to have the requisite capacity in law to make the decision she sought.
Holman J also acknowledged the sensitivity of the issue and the restrictions imposed on the judiciary by the legal provisions:
“[i]t is important to stress that the present case clearly falls to be considered and resolved within the framework of the law as it is, and not any alternative law that some people argue or campaign for” [at 4] and “the protection which the law affords to the foetus is the protection of the Abortion Act 1967 and other legislation, such as sections 58 and 59 of the Offences Against The Person Act 1861. But, subject to that, the foetus has no independent rights which fall to be weighed or considered by me at all in these proceedings. Some people may consider that the law should be otherwise. But the law is currently as I have just stated it, and that is the law which I must apply” [at 7].
The decision will not be welcomed by “pro-life” campaigners and it is possible the even some “pro-choice” supporters will be rather uncomfortable with the “eleventh hour” circumstances under which the court reached its conclusions:
“Because the duration of her pregnancy is already approaching the 24th week, and because of the interposition of other factors, including a bank holiday weekend and the non-availability of the doctor who is proposed to perform the abortion, it is currently proposed to start the two-day procedure tomorrow, Wednesday 22 May 2013” [at 23].
Regardless of the maximum time-limit within s 1(1)(a) Abortion Act 1967, there will always be a dilemma for judges and medical professionals when terminations are sought close to the limit. However, against the increases in the annual abortion rate , there has been a steady trend towards fewer late abortions, with 91 per cent carried out at under 13 weeks gestation and 78 per cent at under 10 weeks. Nevertheless, that is not, of course, the issue for those who believe that life begins at, or close to conception