Re AB: Termination of pregnancy

In this guest post, Simon Hunter, of Three Stone Chambers, reviews the tragic case of Re AB in which the Court of Appeal overturned the decision of the Court of Protection to permit an NHS Trust to perform an abortion on a 24-year-old woman

Re AB [2019] EWCOP 26, [2019] EWCA Civ 1215[1]

The recent case of Re AB has been widely reported. In it, Lieven J held in the Court of Protection that an NHS Trust was permitted to perform an abortion on a 24-year-old woman. The Court of Appeal overturned that decision. The case created headlines around the world, shining a spotlight on the work of the Court of Protection and the difficult decisions that it has to make on a daily basis.

Facts 

AB is a 24-year-old woman with moderate intellectual disability and an IQ of about 35-49: CoP [7]. This is said to mean that she functions “at a level roughly equivalent of a 6-9-year-old”: idem. She was born in Nigeria but came to the UK in about 2007: CoP [6]. She has lived in this country with her mother, CD, apparently ever since.

In 2018 AB and CD visited Nigeria and stayed with family members. CD returned to England. When AB returned to England in April 2019 it became clear that, whilst in Nigeria, she had become pregnant in circumstances which remain unclear: CoP [14] (but which, given AB’s lack of capacity to consent, must have been a rape: CoP [16]).

The complicated nature of AB’s home life was highlighted by the fact that, on 16 May 2019 CD went to the hospital with AB, and all of AB’s belongings and ‘handed over’ care of AB to the NHS Trust, because CD did not feel that she could “support AB in having a termination”: App [12].

On 21 May 2019, the NHS Trust made an application for an order permitting it to perform a termination of AB’s pregnancy. At the date of the hearing in front of Lieven J, AB was said to be 22 weeks pregnant. This, as readers of this blog will be aware, is very close to the cut-off date of 24 weeks under the Abortion Act 1967.

The order was opposed by CD, a former midwife, who is strongly opposed to abortion. Her evidence was that within her (devoutly Roman Catholic) community abortion is never spoken about and that there is a “real stigma to having a termination”: CoP [20]. Lieven J said that she had “no doubt having heard her that CD has nothing but AB’s best interests at heart and is devastated by the fact that she has become pregnant”: CoP [14]. The local authority took a neutral position, although the relevant officer of the authority expressed a personal view in oral evidence that it was in AB’s best interests not to have the termination: CoP [43]. The Official Solicitor (as AB’s litigation friend) opposed the making of the order sought: CoP [44].

Judgments i: Lieven J in the Court of Protection

It will not surprise anyone that Lieven J began her judgment by opining that it would have been much better if the application had been made rather sooner. The NHS Trust had known about AB’s pregnancy since April 2019, but application was not made until 21 May 2019 and not heard until late June, very close to the Abortion Act cut-off: CoP [6].

Lieven J noted that on two occasions in May 2019 AB had been assessed to ascertain what her capacity was. The assessments covered capacity to: litigate, consent to sexual relations, make decisions about psychiatric assessments, and to decide whether to terminate the pregnancy. On both occasions, the doctors making the assessments had concluded that AB lacked capacity in all relevant respects.

On the evidence that was before her, Lieven J found that AB had only a relatively limited understanding of the impact of pregnancy, giving birth and having an abortion. In a phrase which, unsurprisingly, was widely reported in the media she said that AB “would like to have a baby in the same way she would like to have a nice doll”: CoP [60]. This image, so persuasive in its emotional effect, was not, in fact, one of Lieven J’s creation. At one of the capacity assessments, a Dr N asked AB about the pregnancy and the process of birth. “She pointed to a doll and said that was her baby”: [17].

There was clearly some considerable volume of medical information before Lieven J (including on the risks of post-partum psychosis: CoP [24]), but little of it need be summarised here, for this is not the issue on which the decision turned. What was more important was the evidence of AB’s wishes and feelings, and her understanding. In short, the evidence was that AB wanted to keep the baby and live with him/her. As Lieven J says: “I think that it shows that if she was making the choice, at this moment she would not want a termination. But the very nature of her lack of capacity is that she does not have a full (or actually on the evidence very much) understanding of the nature of the decision. Ms S’s evidence was that her attitude to the baby fluctuates”: CoP [28].

In considering the case, Lieven J began by assessing the question of capacity. The case here was clear: AB lacked capacity in the relevant sense. As this was agreed by all parties, no more need be said about it.

The second question was whether it was in AB’s best interests to have the termination. Lieven J said: “I am acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 rights. However, the very nature of the MCA is that the court is given the duty of deciding enormously difficult decisions which the individual may well not agree with, for the very reason that the individual does not fully understand the decision to be made. This is very much the case here where the decision either way could have lifelong consequences”: CoP [46].

Lieven J went on to consider the risks (medical, psychiatric and emotional) involved in having, or not having, the termination, and then to consider AB’s wishes. Her finding on the risks was that the risks of having the termination were less than the risks of having the baby: CoP [52]. She said: “I have to focus on AB as an individual and her best interests, not societal views on termination, the rights of disabled people in general (including as set out in the UNCRDP), or some concept of the benefits of having a genetic child and being biological mother; in circumstances where AB is unable to comprehend these concepts”: CoP [51].

At the core of Lieven J’s decision was the fact that AB would be unable to care for, and probably be unable to live with, the baby when it was born. Certainly, Dr N said that, if she was asked for advice on that she was advised that AB should not live with the baby and should not have unsupervised contact, because of the risks to the baby: CoP [53]. This clearly weighed on Lieven J’s mind.

For CD to look after the baby, as had been suggested, would mean (Lieven J held, although the Court of Appeal were later to disagree) that AB could likely not live with her. “In that scenario AB suffers the real trauma of having the baby taken away and not being able to live at her home or with her mother”: CoP [54]-[55].

At CoP [60]-[61] AB’s wishes and feelings are considered. They are said to be “plainly relevant”. If they had been clearly expressed, and if AB had shown any real understanding of the situation, Lieven J “would give them a great deal of weight”: CoP [60]. However, she found that AB’s wishes were not clear, and she had no real understanding of the situation, and so limited weight could be placed upon them: idem.

On balance, Lieven J found that AB’s best interests lay in the termination. It only seems fair to the judge, given her conscientious judgment, to end with the words that she herself did: “I should make clear that I do not underestimate the harm from this course, but I think that is clearly outweighed by the harm from continuing the pregnancy”: CoP [63].

Judgments ii: King LJ in the Court of Appeal

The Court of Appeal heard an application for permission to appeal, rolled up with the appeal, on an urgent basis, given the time pressure before the Abortion Act cut-off: App [6]. They endorsed Lieven J’s criticism of the delay in bringing the matter for hearing in the Court of Protection and gave some guidance on the practicalities of bringing such cases on urgently: App [13]-[14].

King LJ (with whom McCombe LJ and Peter Jackson LJ simply agreed) summarised the interaction between the Abortion Act and the jurisdiction of the Court of Protection: App [21]ff. She said at App [27]: “However one looks at it, carrying out a termination absent a woman’s consent is a most profound invasion of her Article 8 rights, albeit that the interference will be legitimate and proportionate if the procedure is in her best interests. Any court carrying out an assessment of best interests in such circumstances will approach the exercise conscious of the seriousness of the decision and will address the statutory factors found in the Mental Capacity Act 2005 (MCA) which have been designed to assist them in their task.”

The court went on to summarise the best interests test, and then noted that “It is well established that the court does not take into account the interests of the foetus but only those of the mother: Vo v France (2005) 10 EHRR 12 at [81-82]; Paton v British Pregnancy Advisory Service [1979] QB 276; Paton v United Kingdom (1980) 3 EHRR 408. That does not mean that the court should not be cognisant of the fact that the order sought will permit irreversible, invasive medical intervention, leading to the termination of an otherwise viable pregnancy. Accordingly, such an order should be made only upon clear evidence and, as Peter Jackson LJ articulated it in argument, a “fine balance of uncertainties is not enough”: App [31].

There were three grounds of appeal:

  1. Lieven J erred in relying or, or placing too much weight on, the fact that the baby would be removed from AB at birth, thereby rendering wrong her best interests analysis.
  2. Lieven J failed to carry out a sufficient balancing exercise of whether the termination was in AB’s best interests, “having regard to the need for powerful evidence of risk to the mother’s life or grave risk to the mother’s long-term health of continued pregnancy”: App [32(ii)][2].
  3. Lieven J failed to have full regard to AB’s wishes and feelings and/or her Art 8 rights to motherhood.

The conclusion of the Court of Appeal was that Lieven J had given insufficient weight to the non-medical factors, and too much weight to the views of the doctors. This was particularly the case where the “views expressed by the doctors were necessarily significantly predicated upon imponderables”: App [79]. The Court of Appeal felt that the evidence as a whole was “not sufficient to justify the profound invasion of AB’s rights represented by the non-consensual termination of this advanced pregnancy”: idem.

The reasons for this finding are most persuasively summarised in App [71]: “Part of the underlying ethos of the Mental Capacity Act 2005 is that those making decisions for people who may be lacking capacity must respect and maximise that person’s individuality and autonomy to the greatest possible extent. In order to achieve this aim, a person’s wishes and feelings not only require consideration, but can be determinative, even if they lack capacity.”

Looked at in some more detail, King LJ held that:

  1. Lieven J had been entitled take into account the “sad reality of the situation, namely that AB is incapable of caring for herself, let alone a baby”: App [36]-[37];
  2. However, she had been wrong to proceed on the assumption (as she did in CoP [54]-[55]) that there was a strong possibility that CD would be allowed to care for the baby: App [39];
  3. Ground 2 failed insofar as it alleged that only where s.1(1)(b) of the Abortion Act 1967 was engaged could the court ever conclude that it was in the best interests of a pregnant woman to have a termination, this not being the law: App [42];
  4. King LJ could “see no basis upon which the judge’s findings, in relation to the quality of AB’s wishes and feelings, can be undermined”: App [51]; but
  5. Lieven J had failed to give sufficient weight to AB’s wishes and feelings: App [55].

This last error was manifested in a failure to make any reference in her analysis to CD’s views: App [64], to the views of Ms T (AB’s social worker): App [65], and the Official Solicitor’s representative: App [67]. These three, particularly CD and Ms T, were the people who know AB best. Lieven J had also failed to factor in AB’s feelings as well as her wishes: App [76]. That failure fundamentally undermined Lieven J’s best interests decisions: App [79].

Commentary

I have summarised the judgments of the courts in some detail, including some lengthy quotations. I make no apologies for doing so. The case has been politicised by those seeking to make known their own views of abortion in general, often with little regard to the facts of AB’s situation or the function of the Court of Protection. The decision of the Court of Appeal has been portrayed in some parts of the media as a victory against a first-instance judge “who has zealously defended abortion rights in her previous writings and public statements”[3]. One Roman Catholic blogger described the week concerned as “the week forced abortion nearly arrived in Britain”[4]. In those circumstances, the gobbets of text extracted from the judgments need to be read and understood (by those on all sides of the underlying philosophical and theological debates) in their context.

It seems clear to me, as I’m sure it will to anyone reading her judgment, that the decision of Lieven J was thoughtful, nuanced and cogently-expressed, particularly given the short time in which she had to consider the matter and give judgment. It has sensitive regard for the family and for the tragic[5] circumstances of AB’s situation. As Lieven J herself notes, the judgment was given ex tempore, that is to say, immediately after the conclusion of the hearing and without taking any time for further consideration. As such, even allowing for its later overturning by the Court of Appeal, it is a remarkable judgment.

It will also be clear to anyone reading the judgment of the Court of Appeal that it is not an untrammelled victory against the perceived tide of pro-abortion sentiment. This can be particularly seen from the extracts in App [27] and App [31] above. The appeal was allowed not because the Court of Appeal wished to pass any conclusion on abortion in general – it was allowed because Lieven J failed to give sufficient weight to the wishes and feelings of a disabled young lady.

The Court of Protection is called on to “to focus on [the incapacitated person] as an individual and her best interests, not societal views on” the issues concerned: CoP [51]. It “must respect and maximise that person’s individuality and autonomy to the greatest possible extent”, even though they lack capacity: App [71]. For its trouble, it gets decried as secretive and controversial.

To say that this case is sad or difficult or distressing is a truism almost to the point of platitudinousness. The Court of Protection is “given the duty of deciding enormously difficult decisions which the individual may well not agree with, for the very reason that the individual does not fully understand the decision to be made”: CoP [46], see above. Pretty much by definition, the cases that come before the court are all sad, difficult or distressing. They are often all three. This case shows the court system, and the appeal system, working exactly as it should.

AB is a young lady who is unable to care for or make decisions for herself. She has become pregnant in circumstances, presently unclear, but which would seem (given her lack of capacity to consent) almost certainly to amount to a rape. She will be unable to look after her child. The realities of the care of that unborn child have still to be worked out when he/she is born. It seems clear that AB will suffer from the outcome, whatever it will be. This case is neither a victory for pro- nor for anti-abortion activists. It is not a victory for anyone. It is, like so much of the Court of Protection’s work, heart-breaking.

Simon Hunter

Reference

[1] References to the judgment of Lieven J in the Court of Protection are in the form “CoP [x]” and those to the judgment of King LJ in the Court of Appeal are in the form “App [x]”, with x being in each case the paragraph number.

[2] This is a reference to s 1(1)(b) of the Abortion Act 1967: see App [24] and [42].

[3] https://www.nationalreview.com/news/u-k-court-reverses-ruling-that-would-have-forced-mentally-ill-woman-to-have-an-abortion/, accessed on 12/7/19.

[4] https://abyssum.org/2019/06/28/abortion-is-evil-but-a-judicially-enforced-abortion-is-an-abomination/, accessed on 12/7/19, the blog of retired American bishop Rene Gracida. It should be noted that termination cases have been coming before the court at least since Re SG (adult mental patient: abortion) [1991] 2 FLR 329, further examples include Re X (a child) [2014] EWHC 1871 (Fam) (a case in the Family Division concerning a child – in this case an abortion was ordered, but it should be noted that X herself (who was 13) expressed a desire to have an abortion).

[5] ‘Tragic’ is an overused word, but if it is appropriate anywhere, it would seem to me to be here.

Cite this article as Simon Hunter, “Re AB: Termination of pregnancy” in Law & Religion UK, 15 July 2019, https://www.lawandreligionuk.com/2019/07/15/re-ab-termination-of-pregnancy/.

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