The recent case of Re SB (2013) EWHC 1417, which came before Mr Justice Holman in the Court of Protection on 21 May 2013, considered the highly emotive issue of whether a mother had capacity to terminate her pregnancy at the 23rd week of its term.

The Current Law

The Mental Capacity Act 2005 provides that an adult must be assumed to have capacity to make a decision, unless it is established that they lack capacity, due to an impairment of, or disturbance in the functioning of the mind, or brain.  It does not matter whether the impairment or disturbance is permanent or temporary.  You should not be treated as unable to make a decision, merely because it is unwise.  It is only if it is established, on the balance of probabilities, that you lack capacity, that the Court can step in and make a decision for you, based on your overall best interests.

The current law on abortion, which is subject to considerable public debate, permits a termination, if the pregnancy has not exceeded its 24th week, provided a number of conditions are satisfied.

The facts of Re SB

The case of Re SB involved a 37 year old woman, who was described by the Judge as being of considerable intelligence and suffering from bipolar disorder.  At times, the disorder had been controlled by medication, although there were relapses and remissions on occasions. 

The woman became pregnant in December 2012.  She gave evidence to the Court that she wanted to become pregnant and to have a baby.  Up until April 2013, she showed every sign of wanting to keep the baby.  However, she then stopped taking her medication and became unwell.  Later that month, she attended a clinic seeking to have a termination.  Two appointments were made for the termination at two different clinics, which she did not go through with, due to issues with travel and the procedure.  In May 2013, she was sectioned under the Mental Health Act and remained compulsorily detained up to, and following, the hearing.  During her detention, she strongly continued to request a termination.

The hospital, where she was detained, was of the view that the woman did not have the capacity to make the decision to terminate, due to her mental health problems.  They made an application to the Court of Protection, asking the Court to declare that she lacked capacity and to consider whether it was in her best interests to have the termination.  The view of the hospital, regarding lack of capacity, was shared by the woman’s husband, mother, treating psychiatrist and also an independent psychiatrist.

Whilst acknowledging that, in most cases, the evidence of one or two psychiatrists will usually determine the issue of capacity, Mr Justice Holman went against the expert evidence and decided that the woman did in fact have capacity to make the decision.  He therefore dismissed the proceedings. Even though the woman’s husband and mother gave evidence that she displayed paranoid beliefs, which they felt distorted her thought process, the Judge took the view that the woman had given a number rational reasons as to why she did not wish to carry the child to term.  This included the fact that she was currently detained, felt suicidal and felt unable to care for the child.  Since the woman had capacity to make the decision, it did not fall within the remit of the Court, to consider whether the decision was in her best interests. 

Autonomy to make decisions

This case clearly illustrates that, unless a lack of capacity to make a decision is established, you have autonomy to make your own decisions, even if they are considered by others to be unwise. In these circumstances, it is not open to the Court to impose on you its own view of what is in your best interests.

The Judge in this case made it very clear that he did not intend to create a precedent or indicate any general proposition of the law.  Each case must be considered on its own particular facts.