Judge: Holman J
Citation:  EWHC 1417 (COP)
Summary: The central issue in this case was whether the mother (P) had the capacity to decide to terminate her pregnancy at the twenty-third week of its term.
P was a 37 year old woman who suffered from bipolar disorder which had at times been controlled by medication, although she had also suffered from relapses and remitting symptoms. She became pregnant in December 2012 and her evidence was that at that point she had wanted to have a baby. The evidence also suggested that until April 2013, she had conscientiously attended scans and had showed every sign of wanting to keep the baby. She had then ceased taking her prescribed medication. She started to exhibit behaviours which led members of her family including her husband and mother to believe that she had become unwell. On 17 April 2013, P attended a clinic seeking to have an abortion. For various reasons, although appointments were made on two separate occasions for the procedure to be carried out, she did not in fact have the termination. At the beginning of May 2013 she was compulsorily detained under s.2 Mental Health Act 1983. Despite that, she had maintained her wish to terminate the pregnancy and therefore not only consented to the abortion but was herself “very strongly” requesting it.
The hospital where she was detained believed that she did not have capacity in the relevant regard and issued proceedings in the COP seeking a determination by the Court and associated declarations as to whether (1) she lacked capacity to make decisions about the desired termination of her pregnancy; and (2) if she lacked capacity, whether it was in her best interests to undergo an abortion procedure.
In an ex tempore judgment, Holman J began by setting out a number of principles defining the parameters of his decision. In particular, he noted that the decision was being taken within the framework of the existing law and in accordance with the provisions of the Abortion Act 1967.
In considering the question of capacity, Holman J reiterated the cardinal principles that a person is presumed to have capacity in the relevant regard unless it is established that they do not and further that if they have capacity then they also have autonomy to make a decision which may be unwise or which others do not agree with.
Holman J noted that the evidence of P’s treating consultant psychiatrist was very clear that P lacked capacity in the relevant respects. That view was shared by the independently instructed Psychiatrist, Dr Smith. Dr Smith’s evidence was that P perfectly understood the procedure and what would be involved as she had previously had a termination. She understood the finality of the decision. However, Dr Smith considered that P lacked capacity as the basis of her decision was flawed evidence and paranoid beliefs, particularly but not exclusively in relation to the future support she believed her husband would provide. In reaching her conclusion, Dr Smith relied on the temporal relationship between P stopping her medication, developing paranoid ideas about her husband and mother and deciding to opt for a termination of pregnancy.
Holman J emphasised that, once the issue was before a court, the overall assessment of capacity is a matter for the judgment of the court. Whilst acknowledging that in most cases the evidence of two psychiatrists would be determinative, he reached a different overall conclusion as to P’s capacity in this case.
Where Holman J disagreed with the experts was as to the “level of the bar as to capacity”, the relevant question under s.2 MCA 2005 being whether P is “unable” to make a decision. The judge considered that the evidence was that P had reached a decision some weeks previously and had maintained her position and so “there is no doubt that she has capacity to ‘make’ a decision.” The more complex question was whether P was unable to use or weigh the information, as s. 2 had to be read in light of s. 3, and the psychiatric evidence was that she could not.
However, Holman J considered it of significance that, even if it was correct that certain of P’s beliefs in relation to her husband and mother were paranoid, she had cited a number of discrete rational reasons as to why she did not wish to carry the child to term. These included the fact of her current situation (as a person detained), her ability to care for the child in the future and that the fact that carrying the child made her feel suicidal. Holman J concluded that P was a person who had made and maintained for an appreciable period of time a decision. He concluded 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. It is of course a profound and grave decision but it does not necessarily involve complex issues. It is a decision that she has made and maintains; and she has defended and justified her decision against challenge. It is a decision which she has the capacity to reach. “
The proceedings were dismissed.
Comment: Aware, undoubtedly, that this decision was a one in a highly charged area, Holman J explicitly stated that this was a case which “could not be more fact specific.” It is however, a striking reminder that the bar for establishing capacity should not be set too high, and that having capacity is not synonymous with making decisions which the court, or other persons, necessarily agree with. In the careful distinction between suffering from a mental illness and suffering from a functional lack of capacity to take momentous decisions, it has some resonances with the pre-MCA 2005 case of Re C (Adult: Refusal of Treatment)  1 WLR 290, in which a patient suffering from severe mental disorder was nonetheless held to have the capacity to refuse to undergo an amputation of his leg to rid him of the gangrenous infection endangering his life.
It is also an example of a case in which the Court has granted an application by the Official Solicitor that his appointment as litigation friend should be brought to an end, that application being made on the basis of expert evidence suggesting that P had the capacity to conduct litigation.