Termination of pregnancy and wishes and feelings in the Court of Protection

25 April 2024 by Esme Cairns

Introduction

The decision of the Court of Protection in Rotherham and Doncaster and South Humber NHS Foundation Trust and NR [2024] EWCOP 17 is the latest in a line of cases where the Court has been asked to determine whether a termination of pregnancy is in a woman’s best interests. Any case about a termination engages the pregnant woman’s Article 8 rights. But where the woman also lacks capacity to decide for herself whether to have a termination, there must be a particularly careful analysis to ensure that her rights are respected. While previous decisions have frequently accorded weight to the wishes and feelings of the pregnant woman at the heart of the case, Mr Justice Hayden’s decision goes further in handing the decision over to the pregnant woman herself.

The facts

When this matter came before the Court, NR was 22 weeks pregnant and detained for treatment in a psychiatric hospital under section 3 of the Mental Health Act 1983. This was her fifth pregnancy. She had two children, both of whom had been removed from her care.  NR had previously had a miscarriage and had had a previous termination aged 15. The judgment notes that she had a long history of drug and alcohol abuse and had also experienced domestic abuse.

The Trust responsible for NR’s treatment had applied to the Court for a declaration that NR lacked capacity to decide whether to have a termination, and that a termination was in her best interests. NR’s own wishes on the subject were conflicted. In his judgment, Mr Justice Hayden sets out a chronology of her articulated wishes and feelings over the course of several months. This chronology reveals the extent of her uncertainty.  As Mr Justice Hayden said, she found herself “on the horns of an invidious dilemma” and had expressed contradictory views, often in the same exchange.

For instance, on 15^th January 2024:

“I don’t want to kill it (baby) but I can’t keep it, cause I am not well and… I just don’t know…. I am confused….. I love babies…. I wanted to be a nurse …. a midwife…. I just can’t kill it…. I can’t…”

And on 15^th February:

“I don’t want to have this baby but I can’t give birth. If I can’t be put to sleep then I will just have the baby and die and the baby can live. I can’t kill it, please don’t let me kill it but I don’t want it either. I can’t make this decision. I don’t want to make this decision. It’s too late but I can’t keep it.’”

Faced with these contradictory and confused expressions of her wishes, Mr Justice Hayden was asked to consider whether a termination was in NR’s best interests. 

The legal context

In order for any termination to be lawful, one of the conditions in section 1 of the Abortion Act 1967 has to be satisfied. Mere consent to the termination – whether by a person with capacity to make the decision themselves, or by the Court of Protection on their behalf if they lack capacity – is insufficient.

Section 1 provides that a termination will not be a criminal offence where two doctors are of the opinion that either:

1. The pregnancy has not exceeded its twenty-fourth week and continuing the pregnancy would involve a risk of injury to the pregnant woman, or any existing children, which is greater than if the pregnancy were terminated;
2. The termination is necessary to prevent grave and permanent injury to the health of the pregnant woman;
3. Continuing the pregnancy would involve a risk to the pregnant woman’s life, which is greater than if the pregnancy were terminated; or
4. There is a substantial risk that the child born would “suffer from such physical or mental abnormalities as to be seriously handicapped”.

Where none of the conditions are met, a termination would be unlawful and the Court of Protection would be unable to authorise it.

The decision

Capacity

Mr Justice Hayden first considered whether NR had capacity to make her own decision about whether to have a termination.  He set out the relevant information which NR would have to be able to understand in order to have capacity, which was recently confirmed in S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10 as follows:

• What the termination procedure involves;
• The effect of the termination procedure and its finality;
• The risks to her health in undergoing the termination procedure; and
• The possibility of safeguarding measures in the event of a live birth.

Mr Justice Hayden also thought that NR would need to be able to understand the consequences of deciding to carry the baby to term, as the “relevant information” which a person must be able to understand in order to have capacity also includes the consequences of deciding one way or the other (section 3(4) Mental Capacity Act 2005).

Having set out the information which NR needed to be able to understand, he considered a report from her consultant psychiatrist. As well as setting out NR’s medical background, with her diagnoses of Emotionally Unstable Personality Disorder and history of depression and psychosis, this report detailed the psychiatrist’s attempts to speak with NR about terminating the pregnancy. The psychiatrist reported that NR had declined to hear about the termination procedure and was “adamant” that she did not want to hear anything about it. Her refusal was, according to the psychiatrist, the result of her mental health condition, which rendered her unable to engage with what a termination would involve. The psychiatrist therefore concluded that she lacked capacity.

No one disputed this conclusion, and so Mr Justice Hayden accepted the psychiatrist’s evidence in finding that NR lacked capacity to make the decision herself.

Best interests

Having established that NR lacked capacity, the question became what was in NR’s best interests.

Section 4 of the Mental Capacity Act 2005 sets out a “checklist” for those making a best interests decision on behalf of someone who lacks capacity. This checklist includes considering the person’s past and present wishes and feelings, where they are ascertainable. There is no obligation to respect the person’s wishes and feelings – the requirement is only to consider them.  As Lady Hale said in Aintree University Hospitals v James [2013] UKSC 67:

“The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”

After setting out the checklist in section 4 and Lady Hale’s guidance in Aintree, Mr Justice Hayden turned to consider the caselaw on best interests in the termination context. Of note was the Court of Appeal’s decision in Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215, where the Court had set aside a declaration by Mrs Justice Lieven that a termination was in a woman’s best interests, in part because of a failure to give due regard to her wishes and feelings. The woman in that case, AB, was 24 and had moderate learning disabilities. All agreed that she lacked capacity to consent to a termination. There was evidence that she wanted the baby and liked being pregnant, yet Mrs Justice Lieven had concluded that AB’s wishes were unclear and should be accorded less weight as she did not have a clear understanding of what having a baby would mean.

On appeal, the Court confirmed that AB’s wishes should not be accorded less weight just because they were unclear or inarticulate. It was also important to consider AB’s feelings, and she was clear that she wanted to have the baby. In assessing the weight to be given to wishes and feelings, Lady Justice King concluded that a person’s wishes and feelings “not only require consideration but can be determinative, even if they lack capacity”.

Having considered the caselaw, Mr Justice Hayden then fell to considering NR’s wishes. These, as set out above, were frequently contradictory. With respect to her feelings, he noted that she had told people of the pregnancy, kept a scan of the baby and showed it to her daughter “joyfully”. He concluded that, in different circumstances, pregnancy would give her pleasure. However, her wishes showed that she was “paralysed by conflict”. He therefore concluded that he was unable to reach a conclusion on what her wishes and feelings were.

Mr Justice Hayden then considered other factors which were relevant to NR’s best interests. He dwelled on the plan for the termination procedure, which would require NR to travel for 4 hours to Homerton Hospital; the impact of the termination on her; and conversely, the impact of continuing the pregnancy. Both were likely to have implications for NR’s mental health and there was a risk that continuing the pregnancy would result in post-natal depression or postpartum psychosis. He also considered the fact that she had demonstrated concern for the baby by giving up smoking.  

Yet ultimately Mr Justice Hayden did not make a best interests declaration, as he had originally been invited to do. Instead of ruling that it was in NR’s best interests to have the termination (or not), Mr Justice Hayden declared that the plan for the termination procedure was lawful. The decision of whether to go ahead with the termination would be left to NR. It was, he considered, in her best interests to make this decision for herself.

Comment

Much of the reported caselaw on termination emphasises the importance of the pregnant woman’s wishes and feelings. This is unsurprising: forcing a woman to have a termination where she does not want it (or conversely, forcing her to carry a baby to term against her wishes) is a serious interference with her Article 8 rights, even if that interference is in legal terms proportionate and necessary in her best interests.

But this decision goes further in the weight which it attaches to wishes and feelings. In Re AB, the Court of Appeal was confident that AB wanted to have her baby. Similarly, in Re H (An Adult; Termination)[2023] EWCOP 183 the woman had expressed a consistent wish to terminate her pregnancy, and so the Court declared that a termination was in her best interests.

Yet in this case, Mr Justice Hayden had concluded that it would be “entirely wrong and unsafe” to reach a view on what NR’s wishes and feelings were. This might have been an obstacle for the Court in making a decision. How could it make a best interests declaration which considered her wishes and feelings when it did not know what her wishes and feelings were?

To avoid this dilemma, Mr Justice Hayden did not make a best interests declaration at all. By declaring that the plan for the termination was lawful and concluding that the ultimate decision of whether to go ahead with the plan or not would be for NR to make, with support from those around her, Mr Justice Hayden showed the ultimate respect for NR’s wishes and feelings. As he said at paragraph 52:

“It is important that NR knows that I am respecting her rights as an autonomous adult woman to make this decision for herself, with the help of those she chooses to be advised by.”

It is notable that the statutory best interests checklist in section 4 of the Mental Capacity Act does not accord any priority to the person’s wishes and feelings. They are just another factor to be considered. Yet section 4(4) does stress the need to maximise autonomy and decision-making capability: decision-makers should “so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate…in…any decision affecting him”. The provision of support for a person to help them make decisions for themselves is also a key component of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (to which England and Wales are signatories).

In enabling NR to make this decision for herself, notwithstanding her lack of capacity, Mr Justice Hayden’s judgment may encourage reflection on the role of the Court of Protection: to make best interests decisions, or to permit and facilitate those without capacity to make decisions for themselves.

Esme Cairns is a pupil barrister at 1 Crown Office Row, Brighton.