An NHS Foundation Trust v AB and CD



Judge: MacDonald J

Citation: [2019] EWCOP 45

Comment

This is the latest chapter in the long running case of AB, first heard before Lieven J on whether or not a termination was in AB’s best interests (see Re An NHS Trust v AB [2019] EWCOP 26). The first instance decision was then overturned by the Court of Appeal (see Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215).

The question for the court at this hearing was whether it was in AB’s best interests to be fitted with an intrauterine contraceptive device (IUD) at the same time as she underwent a caesarean section under spinal anesthetic.

At the start of the hearing both the local authority and the Official Solicitor opposed the application. By the end of the hearing neither actively opposed the application but nor did they consent to it. CD, AB’s adoptive mother, remained opposed.

AB is a 25 year old woman who has been diagnosed with moderate learning disabilities and who is 38 weeks pregnant. She was the adopted daughter of CD, a midwife and native of Nigeria. AB came to the United Kingdom when she was 13 years old, having previously been raised by relatives in Nigeria. AB speaks both English and Igbo. AB had been assessed as lacking capacity to consent to sexual intercourse.

The local authority had not been able to ascertain the circumstances in which AB had become pregnant, but the dates of her pregnancy suggested that it had happened while she was on a trip to Nigeria.

It was agreed by all parties that AB currently lacked the capacity to consent to and/or use contraception.

The local authority and the Official Solicitor’s position was that (i) AB could gain capacity with appropriate education and (ii) the risk of AB getting pregnant in the future was virtually nil because the local authority now had in place a complete, comprehensive and effective support plan[1] to safeguard AB from the risk of unplanned pregnancy. This plan, it was argued negated the need for contraception and would allow for a further period of work to be done with AB to increase her ability to participate in decisions concerning contraception.

The court was particularly concerned about what it termed “the purported safeguarding plan” because it had been formulated in a situation of continuing uncertainty as to the care plan for the new born child. The most that could be said by the local authority in evidence was that the learning disability team were hoping that CD would be the carer for AB’s daughter and AB following the birth.

The following factors weighed heavily with the court:

  • It remained unclear how AB had got pregnant in the first place.
  • It was likely that she was at the time in the care of one of her three female relations who the local authority were proposing as the primary supervisors who would safeguard AB from risk of further unplanned pregnancy.
  • There was evidence from a number of sources that suggested that AB had been involved in other sexual activity and may have been the victim of sexual abuse or sexual exploitation.
  • The supervision plan contained no information at all regarding how the risk of unplanned pregnancy would be managed for AB if and when she returns to visit Nigeria.
  • Neither the local authority nor the police had completed their investigations into the circumstances of AB’s pregnancy and so the local authority was unable to state definitively the precise nature and extent of the risk to AB of further unplanned pregnancies.

MacDonald J rejected the local authority and Official Solicitor’s submission that the risk of AB becoming pregnant in the future as being virtually nil and held that ‘it is plain that in the short term there is an appreciable risk that AB will be sexually active or exposed to sexual activity whilst she remains in the United Kingdom, or indeed if and when she visits her family in Nigeria. Further, as a young women, the chances of AB conceiving are high and, accordingly, the risk of AB being sexually active or exposed to sexual activity translates to a concomitant appreciable continuing risk of unplanned pregnancy. In the medium to longer term, given AB’s age this appreciable level of risk will continue for at least a further ten years, during which time I am satisfied that it is likely that AB will return to Nigeria to visit her family.’

On the issue of AB’s capacity to make decisions about contraception the Judge accepted the evidence from the Trust that it was extremely unlikely that AB would ever gain capacity, particularly as she had already had 15 educational sessions on mode of delivery of her baby and made no progress towards capacity at all.

The judge also accepted the evidence from the Trust that the most appropriate method of contraception for AB was an IUD, and that to insert it at the same time as the cesarean was performed would mean that it could be inserted painlessly with minimum risk of infection and minimum risk of perforation of the uterus. By contrast the insertion of an IUD at a later date would be extremely painful for AB.

With respect to best interests the court concluded that it was not possible to ascertain AB’s wishes on the issue of contraception and no cogent direct evidence of AB’s beliefs and values regarding the use of contraception.

It is worth setting out in full what the Judge said about best interests (at paragraph 42):

In the assessment of best interests, the question of risk must be weighed, including the risk of future pregnancy and the risks to mental and physical health associated with pregnancy, childbirth and/or the removal of the child. For the reasons set out above, I am satisfied that there is an appreciable risk that AB will have a further unplanned pregnancy unless steps are taken to prevent this. The history of litigation in this matter demonstrates eloquently the devastating impact that a failure to protect AB from the appreciable risk of further unplanned pregnancy that I am satisfied subsists in respect of AB. Further, I have given weight to the opinion of Dr N, endorsed by Professor X, that in light the features of a mood disorder displayed by AB, she is at greater risk of mental health difficulties, including puerperal psychosis following the delivery of a child. There is no reason to believe that this risk would cease to pertain in respect of a further unplanned pregnancy. Finally, I have born in mind the careful evidence of Ms T regarding the upset and distress that AB has experienced as the “dry run” for the upcoming caesarean section has been completed.

The judge therefore concluded that it was in AB’s best interests to have an IUD fitted and the least restrictive and proportionate method of doing this was to do it after her cesarean section when it would cause her no pain and would negate the need for a further separate, distressing procedure to be undertaken.

On the issue of Article 8 ECHR, MacDonald J said this (at paragraph 47):

Finally, in circumstances where the insertion of an IUD will prevent AB from having children and making a significant choice regarding her own body, AB’s Art 8 rights are engaged. As I have noted above, proper consideration of P’s Art 8 rights is achieved through the best interests appraisal under s 4 of the Mental Capacity Act 2005. Within this context, I have had regard to the fact that, whilst it is the case that for the duration of its insertion the IUD will prevent AB from conceiving, the evidence before the IUD can be removed at any time should AB’s position change in terms of capacity to consent to sexual relations. Having regard to the risks I have identified, and to the consequences for AB of those risks becoming manifest, I am satisfied that the interference in AB’s Art 8 rights constituted by the court decision to authorise the insertion of an IUD as being in AB’s best interests is one that is necessary and proportionate for the purposes of Art 8(2).

Comment

This careful and clear judgment emphasizes the importance of public bodies considering the issue of future contraception while P is still pregnant so as to be able to protect P from future pregnancies if this is in P’s best interests, in the least restrictive and proportionate way. Anecdotally this does not often happen because while local authorities areit responsible for putting in place a care plan that guards against the risk of P having sex if she lacks capacity to consent to it, they do not consider themselves the decision maker on decisions about contraception. This is considered to be the GP’s domain.

 

[1] The plan was that AB would never be left at home alone, would never be left unsupervised with a male, would be accompanied in the community and would be with CD, a trusted family member or support worker at all times.

CategoryBest interest - Contraception Date

Keywords


Sign up to our Mental Capacity Law Newsletter


If you would like to subscribe to our newsletters please click the link below.

Subscribe

Call +44 (0)20 7832 1111 for more information

Barrister portfolio

Close

Click the + icon next to any barrister to add their profile to this portfolio.

Barrister Call CV Email