Mental Capacity – Court Refuses to Authorise Non-Consensual Abortion

Those who lack the mental capacity to make important decisions for themselves still have the right to express their wishes and feelings if they are able to do so – and judges must listen to them. The Court of Appeal powerfully made that point in ruling against involuntary termination of a disabled young woman’s pregnancy.

The woman, in her 20s, functioned intellectually at the level of a child aged between six and nine and exhibited challenging behaviour. She had a complicated family background and lived with her adoptive mother. Following a trip abroad to visit members of her family, she returned to the UK pregnant.

Her local NHS trust took the view that giving birth to the child would place her at grave physical and psychiatric risk and applied to a family judge for guidance. By that time, her pregnancy was only a week or two short of 24 weeks, the period specified by the Abortion Act 1967 as the latest possible date on which a lawful termination can take place.

In the light of the unanimous views of medical experts, the judge authorised the trust to proceed with a termination on the basis that that would be in the woman’s best interests. An immediate challenge was, however, launched to that decision by the adoptive mother. The Court allowed the appeal, with the result that the pregnancy would proceed to term and the child would be delivered by Caesarean section under general anaesthetic.

In giving reasons for its decision, the Court noted that judges and others who make decisions on behalf of those who lack capacity must respect and maximise their individuality and autonomy to the greatest possible extent. In order to achieve that objective, a person’s wishes and feelings not only require consideration but can be decisive, even if the person lacks capacity.

The adoptive mother, a staunch Roman Catholic, was adamantly against termination of the pregnancy and, insofar as the woman was able to understand her situation, it was clear that she wanted her baby. Yet the judge had, in her ruling, made no reference to her wishes and feelings. She had also not mentioned the views of her social worker and the Official Solicitor, who represented her interests in the proceedings, both of whom were opposed to termination.

The Court concluded that the judge had clearly given inadequate weight to non-medical factors in the case. The expert evidence was not, by itself, sufficient to justify the profound invasion of the woman’s rights represented by the non-consensual surgical termination of her advanced pregnancy.