Abortion, mental incapacity and prior intentions: Court of Protection Clarifies the law

26 February 2016 by Matthew Hill

An NHS Trust v CS (By Her Litigation Friend, the Official Solicitor) ] EWCOP Read the  judgement.

The Court of Protection does the work of Solomon on a daily basis. Matters of life and death are brought before it, and with them come a mass of conflicting rights, overlapping statutes, and an array of case law from which arguments can be drawn. At the end of it, an individual judge must make a stark decision, which may have the most profound impact on another human being. One of those charged with making such decisions once divided the advocates who appeared before him into those who complicate and those who clarify. There is no surprise as to which he preferred.

Baker J’s judgment in this disturbing case will boost the cause of the clarifiers. CS has two children and, before Christmas, became pregnant by her then partner. It was a relationship that, it is alleged, became “characterised by domestic violence” (a phrase that it somehow more chilling for its judicial restraint). CS told friends and families that, in the circumstances, she intended to terminate the pregnancy. Days later she was, allegedly, assaulted by her partner. She was hospitalised with serious head injuries comprising fractures, intracranial bleeding and brain damage. She has post-traumatic amnesia and her behaviour has become extremely unsettled, marked by agitation, restlessness and disruptive acts. Her prognosis is uncertain.

The Trust treating her brought an application to the Court, seeking an urgent order to allow them to perform a surgical abortion. The urgency arose because the window of time during which such a procedure could be performed was closing. With the urgency came a plethora of issues. CS’s condition may improve in the future, but by then it could be too late to terminate the pregnancy. In those circumstances, what weight should be given to the evidence from CS family and friends of her prior intention to have a termination? How should that be balanced against her current wishes, insofar as they can be ascertained? What significance should be attached to the fact that she had previously had a termination? And what, if any, attention should be paid to the views of her partner, now arrested and remanded in custody?

Baker J held that he had two decisions to make. Does CS lack capacity? If so, what order should be made in her best interests?

On the first question, he reverted back to his summary of the central principles in CC v KK [2012] EWHC 2136 (COP), [§§18-25]:

(i) the burden of proof lies on the party asserting that the individual in question lacks capacity, and the standard is the balances of probability;

(ii) there is a two-stage process – the ‘diagnostic test’ to determine whether the individual has a disturbance/impairment of the mind or brain, followed by the ‘functional test’ of whether this renders the person unable to make the decision in question;

(iii) capacity is time-specific and issue-specific – i.e. does the person have capacity at that time to make that decision;

(iv) a person is not to be treated as unable to make a decision unless all practical steps to help her have been taken without success;

(v) it is not necessary for the person to comprehend every detail of the issue in order to have capacity;

(vi) an unwise decision does not equate to a lack of capacity; (vii) in assessing the question of capacity, the Court must assess all relevant evidence (and not simply defer to the expert evidence);

(viii) the Court must guard against being overly-protective: the assessment of capacity must be detached and objective. The Court also has to be satisfied that there is a sufficient causal relationship between the mental impairment and the inability to make the decision in question.

On the second question, that of best interests, Baker J explained that he had to permit and encourage CS to participate in the decision-making (in so far as that was practicable). By law he had to consider (i) her past and present wishes and feelings; (ii) her beliefs and values; (iii) the other factors that she would be likely to consider if she were able to do so; (iv) the views of anyone engaged in caring for her or interested in her welfare as what would be in her best interests. The case law reflected the importance of looking at CS’ welfare in the widest sense (not just medical but social and psychological). There was no theoretical limit to the weight or lack of weight to be given to a person’s wishes, feelings, beliefs and values. In termination cases,

the court must surely attach very considerable weight indeed to the, albeit qualified, autonomy of a mother [who] … is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination: see Re X [2014] EWHC 1871 Fam.

Applying these principles to the case, Baker J found that clear answers emerged to the two questions before him. CS, at that time and in respect of the decision that needed then to be made, did not have capacity. (This was a view shared by both the Trust and the Official Solicitor.) And it was in her best interests to proceed with the termination. He placed emphasis on two factors in particular. First, the “overwhelming” evidence of her prior intention to have a termination, as expressed to her family and friends before the alleged assault. Second, the fact that she had come to that decision having previously had a termination, and hence with the experience of the physical and emotional consequences of such a procedure. These were the crucial factors, although Baker J also noted the advantages to her physical recovery and rehabilitation of proceeding with the termination. Her current wishes were unclear, contradictory and difficult to ascertain despite efforts being made. Interestingly, Baker J felt it appropriate to serve notice of the application on her former partner (while stressing that the law clearly establishes that he could not have sought an injunction to prevent a termination). The former partner did not respond.

This interesting judgment shows the value of the clarifiers in the Court of Protection. The analysis is detached and objective (as Baker J had said it must be). It is structured and forensic. Yet it is also underpinned by humanity and sympathy. It is this combination that allowed for the clear answer to emerge. Solomonic indeed.

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