Judge: Hedley J
Citation:  EWHC 50 (COP)
Summary: Although this case was decided back in January, it is included in this issue of the newsletter as the judgment has only just become available. The subject of the proceedings, P, was a young woman who was born with sickle cell disease which caused her to suffer a number of cerebral vascular incidents, or strokes. P’s resultant learning disabilities placed her intellectually in the bottom 1% of the population.
P discovered that she was pregnant towards the end of 2012 and the NHS Trust made a serious medical treatment application to the Court of Protection concerning P’s capacity to decide whether or not she wished to continue with the pregnancy.
At the time the application first came before Hedley J, there were grounds to believe that P lacked the capacity to make this decision. However, by the time of the hearing in January, there was unanimity between the parties, supported by independent psychiatric evidence, that P had capacity to decide whether or not to continue with or to terminate the pregnancy.
In his review of the law, Hedley J placed particular emphasis upon the principle enshrined in s.1(4) of the MCA 2005 that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. He noted (para 10) that
“In the field of personal relationships that is a very important qualification to the powers of the court. The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships. The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.”
Hedley J reiterated the importance of assessing an individual’s capacity to make deeply personal decisions (at para 16):
“It is, as I said, very important to bear in mind, particularly in the field of those with significant learning difficulties who may well be unable to function independently in the community in every aspects of their life, that they may very well retain capacity to make deeply personal decisions about how they conduct their lives. One has in mind the question of choice of partners; the extent to which they wish to be sexually active; the extent to which they may wish to make permanent relationships by way of marriage or indeed civil partnership; the extent to which they may wish to be able to make decisions about their own medical care, including, as in this case, the continuation or termination of a pregnancy. It cannot be the case that merely because a person has significant difficulties in functioning in the community, it can be presumed that they lack capacity to make profoundly personal decisions. They may in fact do so but that has to be assessed on an individual basis.”
Comment: This was Hedley J’s last decision as a puisne judge of the High Court sitting in the Court of Protection. The extracts set out above stand as a fitting testament to the humanity and wisdom which he brought to the Bench.
The most important practice point is his endorsement of the pre-MCA 2005 guidance given by Coleridge J at paragraphs 29-38 of An NHS Trust v D  1 FLR 1110 as to when applications concerning termination should be brought to Court. As those passages are not reproduced in the judgment of Hedley J, and in light of their importance, we set out their central points below.
Coleridge J emphasised that “the effect upon a mentally incapacitated woman of terminating a pregnancy should not be underestimated. Whilst it may be true that the overall effect of a termination may not be as pronounced as that of a sterilisation procedure, it is nevertheless a drastic and irreversible procedure however commonplace it might now have become. The opportunity for a woman to become pregnant again does not detract from this fact. The issues raised by a proposed termination can be complex and difficult, and they may in the harder cases be finely balanced” (para. 28). He further emphasised that, although proposed terminations of pregnancies in mentally incapacitated women are not uncommon, and that where the issues of capacity and best interests are clear and beyond doubt, an application to the court is not necessary, where there is any doubt as to either capacity or best interests, an application to the court should be made. He noted that, in particular, that the following circumstances would ordinarily warrant the making of an application:
(i) where there is a dispute as to capacity, or where there is a realistic prospect that the patient will regain capacity, following a response to treatment, within the period of her pregnancy or shortly thereafter;
(ii) where there is a lack of unanimity amongst the medical professionals as to the best interests of the patient;
(iii) where the procedures under s 1 of the Abortion Act 1967 have not been followed (ie where two medical practitioners have not provided a certificate);
(iv) where the patient, members of her immediate family, or the foetus’ father have opposed, or expressed views inconsistent with, a termination of the pregnancy; or
(v) where there are other exceptional circumstances (including where the termination may be the patient’s last chance to bear a child).
If any case falls anywhere near the borderline in relation to any one of the criteria, Coleridge J emphasised that for the avoidance of doubt it should be referred to the Court.
Coleridge J also noted that the importance of making necessary applications in good time cannot be overstated, and that “[i]t is imperative that the medical profession ensures that adequate protocols are put in place for the timely resolution of these issues” (para 36).
In the circumstances, whilst it is not clear from the judgment what formal assessments of P’s capacity were undertaken before the proceedings commenced (and hence whether the need for the proceedings would have been obviated if there had been clear evidence of lack of capacity), it is not surprising that Hedley J was not critical of the NHS Trust for bringing the application.
The last practice point is masked in diplomatic language, but it is perhaps proper to imply that Hedley J had seen by the time that he had retired one too many reports from psychiatrists certified as s.12 MHA 1983 doctors who did not entirely grasp the complexities of the MCA 2005 – see paragraph 14, where he commented dryly that: “[e]xperience has suggested that not everyone familiar with the Mental Health Acts is necessarily in a position to give [the] kind of very precise guidance and assistance under the Mental Capacity Act 2005” needed to assist the Court in the resolution of questions of capacity.