Re SB (A patient; capacity to consent to termination)  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.
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
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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