Judge: Baker J
Citation:  EWCOP 10
A Hospital Trust made an application to the Court of Protection in respect of CS who was said to lack capacity, seeking an order that it would be in her best interests to undergo surgery terminating her pregnancy.
CS already had two children. She had been in a relationship with the father of the younger child until recently. It was alleged that her partner was violent towards her. In December 2015 she discovered that she was pregnant by him. Thereafter she told a number of people, including her sister, that she did not intend to keep the baby and that she wanted to have an abortion. She asked her sister to accompany her to the clinic. Some years earlier CS has also had an abortion and on that occasion that sister had also accompanied her to the clinic.
Shortly after the conversation with the sister, CS was allegedly violently assaulted by her partner and sustained serious injuries, including serious head injuries and brain damage. Her partner was arrested and is presently remanded in custody. It is likely that there will be criminal proceedings. CS received emergency treatment and was remained in that hospital receiving care and treatment. The prognosis was unclear; she remained agitated, restless, disruptive and extremely unsettled. She wandered, had assaulted staff and had suffered falls. She was suffering from post–traumatic amnesia and had no insight into her condition. Although it was predicted that she would emerge from this, there was no indication when this would happen.
At the time of the substantive hearing the application had become urgent because the time during which a surgical termination of pregnancy could be carried out was about to expire the following week. The Official Solicitor had accepted appointment to act as the litigation friend of CS and the court had the benefit of written medical reports from her treating clinicians, including a consultant psychiatrist and consultant obstetrician, and statements from a number of relatives and friends of CS. In addition the court heard oral evidence from her mother and sister.
The court had two issues to determine, first whether CS lacked capacity to make decision whether to undergo a termination of pregnancy and secondly, if so, what order should be made in her best interests. The Trust submitted that there was sufficient evidence upon which to make a final declaration in respect of capacity and that it was unlikely that she would regain capacity within the timeframe required. The Official Solicitor agreed. Having regard to all the evidence the Court had little trouble in arriving at the conclusion that CS lacked capacity to make the decision in question.
On the issue of best interests Baker J concluded that the evidence was overwhelming and all one way that CS was consistently expressing her wish to have a termination of pregnancy prior to the injury shortly before Christmas. He had particular regard to the statements supplied by her family and friends and the oral evidence provided by her mother and sister. She had also begun to take steps towards making an appointment and had acted in a way, which was entirely compatible with that being her intention. In considering this evidence he also bore in mind that CS had previously had a termination of a pregnancy and was therefore aware of what was involved physically, emotionally and psychologically. Despite her fluctuating views since her injuries he took the view that little weight should be attached to those views because of her ‘patent lack of capacity’ and that the ‘clear and unambiguous views that she expressed prior to the injury’ were the ‘crucial factors in this case’.
In the above circumstances the judge was satisfied that it was in CS’s best interests to authorise the termination of pregnancy by surgery, because it accorded with her clear wishes prior to the injury and also with her overall health and welfare. He also made a declaration that it would be lawful for the Trust to use proportionate force for the purpose of restraining CS in the event that it became necessary.
In some respects, and despite the nature of the decision, this was not a difficult one for the court to take because the evidence of CS’s views prior to her losing capacity was so very clear. It is however unusual in a medical treatment case for the Court to have available such clear evidence of a person’s past wishes and feelings prior to the person losing capacity. She also lacked capacity to make any decisions at the time of the hearing because of the “manifest difficulties she has in understanding, retaining and weighing up information concerning the pregnancy and therefore little weight could be attached to any views she now expressed in this regard.” Having a termination of pregnancy also accorded with her overall health and welfare interests. Her prior views therefore become the determining factor in deciding her ‘best interests’.