The Court of Appeal has handed down judgment in the much publicised case of Re: AB (Termination of Pregnancy) EWCA CIV 1215.
At the time of the hearing AB was a 24 year old woman with moderate learning disabilities. She functions at a level of between 6 and 9 years old. While staying with family in Nigeria, AB became pregnant in circumstances which are unclear. On her return to the UK, the pregnancy was discovered by her adoptive mother CD. Having carried out psychiatric and social assessments, the NHS Foundation Trust responsible for the antenatal care of AB concluded that it would be in her best interests for the pregnancy to be terminated. It was common ground that AB lacked capacity to consent to a termination. CD is a devout Catholic and completely opposed the proposal for religious and cultural reasons.
Decision of Mrs Justice Lieven
The case came to public attention when Mrs Justice Lieven in the Court of Protection declared that it was in AB’s best interests to undergo a termination of her pregnancy at 23 weeks. CD who was supported by the Official Solicitor appealed the decision and the hearing was convened less than 24 hours before the termination was due to take place.
Importance of issuing proceedings quickly
There was some criticism by Mrs Justice Lieven and the Court of Appeal of the Trust’s failure to issue proceedings for some five weeks after they became aware of the pregnancy and that a further 4 weeks elapsed before the matter was heard. The Court of Appeal held that applications for a declaration which will permit a Trust to carry out a termination on a woman lacking capacity should be regarded and litigated as a medical treatment issue of the utmost urgency.
Best interests analysis
Lady Justice King in the Court of Appeal noted that, however one looks at it, carrying out a termination absent a woman’s consent is a most profound invasion of her Article 8 rights, albeit that the interference will be legitimate and proportionate if the procedure is in her best interests.
Limited guidance regarding the proper approach to the “best interests" analysis is found in Section 4 of the Mental Capacity Act 2005. In addition to other factors, Section 4 requires the person making the best interests determination to take into account, so far as is reasonably ascertainable, the person's past and present wishes and feelings, and if practicable and appropriate to do so, the views of anyone engaged in caring for the person of interested in her welfare.
The Court confirmed the well-established principle that the interests of the foetus should not be taken into account, but only those of the mother: Vo v France (2005) 10 EHRR 12 at [81-82]; Paton v British Pregnancy Advisory Service  QB 276; Paton v United Kingdom (1980) 3 EHRR 408.
While the Court of Appeal was sympathetic to the difficult task Mrs Justice Lieven faced in deciding whether AB should undergo a termination, it found that she had failed to take sufficient account of AB’s wishes and feelings in the ultimate balancing exercise. While these factors might in the end be outweighed by other factors, this did not alter the fact that it was a significant omission.
The Court of Appeal also found that Lieven J failed to give sufficient weight to the views of CD and AB’s social worker, who were said to know AB best, regarding her best interests, or to properly weigh their views against those of the treating psychiatrists. It was found that the medical evidence on its own did not convincingly demonstrate the need for such profound intervention as a termination of a pregnancy.
It was noted that part of the underlying ethos of the Mental Capacity Act 2005 is that those making decisions for people who may be lacking capacity must respect and maximise that person's individuality and autonomy to the greatest possible extent. In order to achieve this aim, a person's wishes and feelings not only require consideration, but can be determinative, even if they lack capacity.
Lady Justice King found that:
“on any objective view, it would be regarded as being an unwise choice for AB to have her baby, a baby which she will never be able to look after herself and who will be taken away from her. However, inasmuch as she understands the situation, AB wants her baby. Those who know her best, namely CD and her social worker, believe it to be in AB's best interests to proceed with the pregnancy as does the Official Solicitor who represents her in these proceedings.”
In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy.
Cases of this nature are fact specific, but the decision offers some helpful guidance on how the best interests analysis should be carried out, and the importance of properly considering all factors set out in Section 4 of the Mental Capacity Act 2005.