Re SB [21.05.13]

A patient who was detained under s.2 Mental Health Act 1983 had capacity to consent to termination of pregnancy at 23 weeks gestation, despite contrary arguments by two independent psychiatrists.


Hospitals and mental health trusts will need to be aware of this judgment, which helps clarify the following:

  • Whilst a patient may be described as not having capacity, they may have some capacity to make certain decisions, for which they hold a range of rational and genuinely held reasons.
  • A judge does not necessarily need to accept expert evidence, even though expert evidence may be pressing towards a patient not having capacity.
  • The court can maintain the autonomy and decision making skills of a patient, despite being detained.

The case also highlights the need to make use of the courts' inherent jurisdiction to make a determination under the Mental Capacity Act 2005 (MCA) in difficult moral situations such as this.

The Judge made it clear that this was not a decision regarding termination of pregnancy without actual consent of the mother.


SB, who was described as a lady of considerable intelligence, was compulsorily detained under s.2 Mental Health Act 1983, suffering bipolar disorder and paranoia.

At the time of admission she was pregnant. SB had previously been pregnant and undergone termination in Italy by way of labour induced by medication. During the course of her current pregnancy she had attempted to undergo a termination on two separate occasions. She cancelled the first appointment due to the distance to travel to the abortion clinic, and the second was cancelled due to her not wishing to have an abortion by surgical evacuation of foetus. She preferred induced labour by medication.

Following admission at the beginning of May 2013, she maintained her wish to undergo a termination. However, her treating clinicians did not consider she had capacity to agree to such a procedure.

An application was made by the hospital seeking a determination under s.16 MCA, as to:

  1. Whether SB lacked capacity to make decisions about the desired termination of her pregnancy.
  2. If she lacked capacity, whether it was in her best interests to undergo an abortion.


Mr Justice Holman held that it had not been established that SB lacked capacity to make decisions about her desire for termination:

  • It was clear that SB was suffering from a mental illness, which was causing an impairment of, or disturbance of the functioning of the mind or brain, within the meaning of s.2 MCA. That, however, was the beginning not the end of the enquiry, for the relevant test and requirement under s.2 was that, because of an impairment or disturbance, the person "at the material time … is unable to make a decision for himself". Section 2 has to be read by application of s.3(1). What was said in this case was that, because of her illness, SB was unable to "understand the information relevant to [her] decision".
  • The two independent psychiatrists considered SB did not have capacity to make the decision whether or not to undergo a termination.
  • However, it was clear that SB was able to describe, and genuinely hold, a range of rational reasons for her decision. The Judge did not necessarily think they were good reasons, or agree with them, but s.1(4) MCA expressly provides that someone is not to be treated as unable to make a decision simply because it is an unwise one.
  • It would be a total affront to SB’s autonomy to conclude that she lacked capacity to the level required to make this decision. It was a profound and grave decision, but does not necessarily involve complex issues. It was a decision that she had previously made, and maintained, which she had defended and justified against challenge. This was a decision she had capacity to reach.