Bipolar patient has capacity to decide to terminate pregnancy
24 May 2013
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013 – read judgment
Sidney Chawatama of 1 Crown Office Row represented the husband of the patient in this case. He has nothing to do with the writing of this post.
The patient in this case was a 37 year old highly intelligent graduate who worked in IT. For the past 8 years she presented with symptoms which were diagnosed as those of bi-polar disorder. She had been detained under compulsory or similar powers at various times in Italy, in France and here in England.
These proceedings were issued in the Court of Protection because the mother concerned was “very strongly” requesting a termination and giving her consent to it. The issue related to her capacity. Section 1(2) of the Mental Capacity Act 2005 is very clear and provides as follows: “A person must be assumed to have capacity unless it is established that he lacks capacity.” Accordingly, 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.
Any consideration of the best interests of the patient, and indeed any power or right of the court to trespass into consideration of her best interests, only arises if it has first been determined that she herself lacks capacity in relation to the decision.
Background facts
It was clear from the patient’s own evidence that she herself did want a baby at the time that she conceived it. But after the first trimester had elapsed, in April, she started to show signs of her disorder and there was a “total reversal” in her attitude towards the baby that she was carrying. She attended a clinic and requested an abortion. Although she did not go through with the appointment made for her at the time, she remained determined to have an abortion and in May she was compulsorily detained under Section 2 of the Mental Health Act 1983.
The hospital believed that she lacked capacity to make her own decision to have a termination and therefore asked that the decision be made by the Court of Protection, applying the test of best interests as fully elaborated in section 4 of the Mental Capacity Act 2005
The arguments
In the view of the treating psychiatrist, the patient did not have capacity to take the decision. The reason why she lacked capacity, he stated, was because
she has certain persecutory or paranoid beliefs as a result of the bi-polar illness which he diagnoses in her.
The overall position of the hospital and the applicant NHS trust was summarised by their counsel as that “she is not thinking straight.”
In the words of the independent psychiatric expert, there was “a strong temporal relationship between the patient stopping medication, developing paranoid ideas about her husband or mother and deciding to opt for a termination of her pregnancy”.
The Court of Protection’s decision
This case differed from most cases before the Court of Protection, in that the assessment of capacity by one or more psychiatrists is usually regarded as determinative.
But those are generally cases in which the patient himself or herself is not positively and strongly asserting, and actually giving evidence, that he or she has the required capacity. In this case Holman J not only disagreed with the assessment of the medical experts and the patient’s family, he also decided that she was quite clearly able to speak for herself, a rare occurrence for the Court of Protection, where patients do not ordinarily get a chance to speak on their own behalf.
The judge was prepared to take the unusual step of differing from the view of the psychiatrists that she would bitterly regret the termination. It was significant, in Holman J’s view, that the patient’s evidence was that she did not express a sense of regret about a termination she had had in the past. “She was very clear that she regrets that she became pregnant at the time, but not the termination”
The decision, with its risks of consequent regret, was one that the patient should be at liberty to take. The judge fully appreciated her situation, including the fact that she was s currently compulsorily detained.
She says “I am extremely unhappy where I am. Imagine being unhappy and being pregnant.” That seems to me to be a perfectly understandable position for a detained patient to take, even though it is not one that all detained patients would take.
She told the court she was “very worried” about her ability to bring up a child. In the judge’s view, since she had for 8 years suffered from a lifelong, relapsing bi-polar disorder, it was “entirely rational” that she had that worry.
This is what Section 1(2) of the Mental Capacity Act requires of the Court; the judge has to consider whether the reasons for a decision are rational. This does not mean that the have to be good reasons, nor does the court have to agree with the patient’s decision, for section 1(4) of the Act expressly provides that someone is not to be treated as unable to make a decision simply because it is an “unwise” decision.
My own opinion is that it would be a total affront to the autonomy of this patient to conclude that she lacks capacity to the level required to make this decision
For those reasons Holman J concluded that it had not been established that she lacked capacity to make decisions about her desired termination, and he will either make a declaration to that effect or dismiss these proceedings.
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If it was any other form of medical treatment nobody would bat an eyelid, and the sooner we get away from the idea that abortion is different the better.
I think John Allman has completely misunderstood the role of the Court of Protection and the way the MCA works in his comment. Far from the case being about shopping around to find doctors who would agree to let you have an abortion, this is a case where the doctors seemed to be trying to stop it happening at all. I’ll try to explain what the case was actually about.
The Court of Protection – as the judgment makes very clear – has no powers to order any doctor to perform an abortion, nor even to determine whether the Abortion Act criteria for one were met. It is simply there to determine whether or not SB had the ‘mental capacity’ to request/consent to an abortion, and if the court decided that she did not to make a ‘best interests’ decision which would stand in lieu of her consent. A request (or consent) for an abortion is not, as John Allman points out, a sufficient basis for an abortion, but it is a necessary one. So in order for doctors to proceed with an abortion, assuming all other criteria of the Abortion Act were met, SB’s mental capacity to give or refuse consent was relevant as one of the bases for a lawful abortion.
The reason the case is a bit odd, is that the way the reason the MCA was introduced in health and welfare matters is to provide professionals with a defence against charges either of trespass or breach of duty of care, in lieu of ‘capable’ consent. So in the original case of Re F (mental patient: sterilisation) – which basically established the legal structure which is now codified as the MCA – doctors were worried that they would be committing trespass if they did perform a sterilisation on a woman who they regarded as incapable of consent, but would be negligent if they failed to as she could not refuse consent either.
In this case it’s not quite clear what the doctors are worried about. If the procedure went ahead, the only person who would realistically bring trespass litigation against them for allowing her to proceed with the abortion without ‘capacity’ to consent to it, would be SB herself. And since she wanted the abortion, that seems pretty improbable, although it’s possible she could later change her mind I suppose. In any case the abortion doctors didn’t seem that bothered about her capacity – it was the team who had detained her under under the MHA who were. So I suspect they weren’t so much trying to provide themselves with a defence in the event that she litigated them in the future, so much as they felt genuinely moved to prevent her making what they saw as a problematic choice.
Personally, I’m horrified that they put her through this – I can’t imagine that either the court proceedings or being forced to continue with a pregnancy which left one feeling suicidal would do much to enhance recovery or trust in one’s medical team. I’m guessing from John Allman’s comments that he doesn’t support a woman’s right to choose an abortion, but either way, the relevant issue here isn’t about a woman’s right to choose an abortion at all, but the right of women with mental health issues to choose an abortion on an equal basis with other women.
@ The Small Places
“I think John Allman has completely misunderstood the role of the Court of Protection and the way the MCA works in his comment.”
You are mistaken that I had “completely” misunderstood the role of the Court of Protection, when I wrote my comment, beginning with the words, “What I don’t understand …”. However, at the time of writing my comment here, my understanding was based on the imperfect representation of the court’s role, in this blog post. If you read my own blog post on this case, entitled “Shopping for medical opinions”, which was written after I had read the full judgment of the court, I hope that you will realise that, by the time I wrote that, I was not really misunderstanding anything.
The Abortion Act does allow opinion shopping. The evidence heard in this case was overwhelming that any two doctors who “formed” the opinion “in good faith”, that Mrs SB should have an abortion, would be forming a tragically mistaken opinion. An opinion directly opposed to the opinion of those best able to form an opinion that they were the most qualified experts to form, assuming that hers is to be on of the 98% or so abortions that are performed because of mental health concerns for the mother. In that sense, the Abortion Act criteria could be described as subjective rather than objective, unless one wishes to quibble that the existence of two doctors’ subjective, mistaken opinions, is, technically, an objective fact.
I don’t think that there is any legal mechanism available, for doctors who know a patient and who are “100%” certain she needs an abortion like a she needs a hole in the head, because an abortion will certainly harm her health, to prevent that patient shopping around for other doctors who are willing to “form” less well-informed, less qualified, “opinions”. Opinions in which they have a commercial interest, because they make their livings delivering abortion services.
In the absence of any legal mechanism for the NHS to save this patient, her child, the child’s father, and the child’s grandparents, from the patient’s own temporary folly, the NHS resorted to MCA proceedings in the Court of Protection. Actually, I think that protecting themselves from future litigation might well have played more of a part in their decision to bring MCA proceedings in the Court of Protection than you seem to think.
These proceedings were always likely to strike a blow for the autonomy of mental patients (a good outcome per se) at the tragic expense of inflicting death on an unborn child, and misery upon an entire family (a disastrous outcome) including the now inevitable future the misery of the mother who was “requesting” an abortion herself, unless she changes her mind, or not even the abortionists are prepared to dirty their hands with this particular job.
The law allows opinion shopping. It allows abortionists themselves to be the very people who form the medical opinions that make abortions legal (like turkeys predictably forming negative opinions towards Christmas). It is that flaw in the law that allow tragedies like this happen. The law allows opinion shopping – and even the advertising of what opinions a particular opinion shop sells. There are those who believe that a mother should even have the right to choose to have an abortion that sensible doctors are almost certain will harm her. They want her to exercise that right for reasons of their own financial self-interest. They are always willing to “form” any “opinion” necessary in order to put a veneer of legality on their own deadly trade. That is why this matter came before the Court of Protection in the first place. The court made a right finding of fact, I dare say, but thus caused an absolutely tragic outcome, in all likelihood.
“the abortion doctors didn’t seem that bothered about her capacity – it was the team who had detained her under under the MHA who were”
Precisely my point. Just follow the money, every time.
“the relevant issue here isn’t about a woman’s right to choose an abortion at all, but the right of women with mental health issues to choose an abortion on an equal basis with other women”
I have never disagreed with that analysis. I was trying to look at the bigger picture, both broader and deeper, avoiding stating the obvious.
My own blog post about this case is published at
http://johnallmanuk.wordpress.com/2013/05/24/shopping-for-medical-opinions/
What sort of help had you in mind, Maureen? Forcing her to go to term?
Unborn foetuses are not pieces of dead meat to be cast aside like so many skinned rabbits. This sounds like one very sick woman who needs help.
All of which goes to prove why – up to some stated point in the pregnancy – the woman’s decision should be final and not need the approval of the medics. We will come to it yet.
All of WHAT goes to “prove” this, and how?
What I don’t understand, as a lay person rather than a lawyer, is why bringing this case doesn’t amount to putting the cart before the horse.
The question before the court was whether SB had mental capacity to “request” an abortion. If we had abortion on demand in the UK, whether an abortion had been “requested” would be an important question, since any mother who requested an abortion, would likely have an abortion. But, under UK law, the patient having requested abortion is irrelevant. Patient’s request is not one of the tests to apply, under the Abortion Act, in determining whether an abortion would not after all be a criminal offence.
As evidence of SB’s capacity to make the irrelevant “request”, SB showed that she had a rational reason for requesting an abortion, namely not wanting to bring up her unborn child herself after he or she had been born. But this was not a reason that two doctors “acting in good faith” could possibly take into consideration, when both forming one of the necessary medical opinions set out in section 1(1) of the Abortion Act, the statutory criteria for medical abortions to be lawful. An abortion is not made legal by a mother not wanting to bring up her child, in the UK, thank God.
To put the horse before the cart, as one should, SB could have simply asked her two psychiatrists to form the opinion in good faith that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to her mental health, the grounds for 97.9% of the legal abortions in England and Wales during 2011. Who better to ask? If they formed that opinion in good faith, then, and only then, the only important mental capacity question would arise, the question as to whether SB had mental capacity to consent herself to the abortion procedure itself.
(Exceptionally, I suppose that there is an outside chance that she was one of the 2.1% of mothers who legally qualify for an abortion other than on the mental health grounds. Had there been any reason to suppose this – and there seems not to be – I suppose that the question could have arisen then, as to whether she should have also been be attended by two other doctors, specialists in whatever far less common risk that continuation of the pregnancy posed to her physical health, whatever that might have been.)
What this case seems to be about, is *opinion shopping*, which I suspect is an everyday occurrence, I suspect. Mentally ill woman (or one who is willing to play the “mental health card” deceitfully) wants an abortion. Her psychiatrists (who better to know?), if she has any psychiatrists, say that their opinion, formed in good faith, is that continuance of the pregnancy does NOT involve risk, greater than if the pregnancy were terminated, of injury to her mental health. But that is not what woman wants to hear.
Woman wants instead to shop around amongst doctors more enthusiastic about abortion, for the opinion she wants to hear. She wants to keep trying other pairs of doctors, until she finds a pair of doctors only too glad to pander to her wishes. Doctors who are not her psychiatrists, and who are almost certainly not going to be psychiatrists at all.
She wants to see if she can persuade one of these other pairs doctors, less well-placed to comment on the risks to her mental health than her psychiatrists, to say that the opinion of her psychiatrists is wrong. She wants them to form “in good faith” the exact opposite of the opinion of the best qualified experts; namely that continuance of the pregnancy DOES involve risk, greater than if the pregnancy were terminated, of injury to her mental health.
That seems to be an opinion elicited “in good faith” easily enough from most abortionists, on the part of any mentally woman who wants and abortion, or any woman who merely pretends to be mentally ill to trick the abortionists into forming “in good faith” the opinions of which a steady stream is needed, in order to provide 97.9% of the abortion industry’s income.
See also the post “Giving evolution a helping hand”, on my blog, for more comment about “psychiatric” abortions that psychiatrists do or would oppose, but which abortionists gladly approve.