AB is a 24-year-old woman with a moderate learning disability and challenging behaviour. She was assessed as functioning at the level of a six to nine-year-old. She takes Risperidone and Sertraline and without them her behaviour deteriorates. She has previously self-harmed, so knives are locked away to reduce her risk.
AB became pregnant. The trust brought an application to terminate the pregnancy. Capacity assessments were carried out which included capacity to litigate, to consent to sexual relationships, capacity to make decisions about psychiatric assessments and terminations of pregnancy. It was concluded that she lacked capacity in all respects.
It was thought that AB had some understanding that she was pregnant and she had expressed a wish to keep the baby. The Official Solicitor argued that the pregnancy should be allowed to continue, to allow her to have a child born alive and then for her to have further contact. CD, AB’s mother wanted AB and the baby to live with her. The possibility of adoption was also put forward.
All risk factors were considered. Relevant medical risk, psychiatric risk, emotional/psychological risks from termination, emotional psychological risks from having the baby and AB’s wishes and feelings.
It was considered that the medical risk from a general anaesthetic would be minor as she was physically healthy. The emotional/psychological risk from having the baby included a risk of postpartum psychosis which could have a long-lasting effect on AB, including possible treatment in a psychiatric unit. The emotional/psychological risks of the termination may mean that AB may grieve for the loss of the baby, but it was thought that she might forget quickly.
In the first instance, the judge decided that CD and the Official Solicitor’s position was unrealistic, as AB would not be able to be left alone with the baby. It was accepted that AB would suffer some trauma from the termination, but this would have a lesser impact than having the baby. If she were to have the baby, in all likelihood, the local authority would take the view that she should not live with the
baby because of the risks to the baby, and she should not have unsupervised contact with the child. The judge concluded that removal of the baby would be deeply traumatic for AB.
AB’s wishes and feelings are a relevant consideration. Focusing on AB, the risks of allowing her to give birth would be an increased risk of psychotic illness, trauma from the caesarean section, trauma and upset of the baby being removed and the risk of the baby being placed with CD and AB losing her home with her mother as well as the baby. Benefits of allowing AB to give birth would be that the child would be born alive and AB would have some limited future contact. Considering all of the issues, it was held that it was in her best interests to undergo a termination rather than continue with the pregnancy.
The judge stated: ‘The significantly more difficult question in this case is what is in AB's best interests. I am acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 rights. However, the very nature of the MCA is that the court is given the duty of deciding enormously difficult decisions, which the individual may well not agree with, for the very reason that the individual does not fully understand the decision to be made. This is very much the case here where the decision either way could have lifelong consequences.’
The position now
The Court of Appeal considered the matter and handed down their judgment on 11 July and overturned the previous decision.
They heard the case with only days to spare before the 24-week limit under the Abortion Act would come into effect.
The principle successful ground of appeal was that the High Court had placed insufficient weight on AB’s wishes and feelings as expressed by herself, CD and AB’s social worker. The court below was too focused on the medical evidence and did not place sufficient weight on the wider evidence.
In practical terms, the Court emphasised the need to bring cases such as these promptly and should be treated as being of the ‘utmost urgency. While the Court appreciated that time was often spent trying to ensure a consensus before resorting to Court, where a case is time sensitive and it is clear that there is dispute which is unlikely to be resolved, an application should be made to the Court as this could always be withdrawn if it was no longer necessary.