H (An Adult; Termination), Re
[2023] EWCOP 183
Rotherham and Doncaster and South Humber NHS Foundation Trust v NR & Anor
8 March 2024
[2024] EWCOP 17
Court of Protection
A pregnant woman with mental health issues couldn't decide whether to have an abortion. The judge didn't decide for her, but made a plan where she could choose at every step of the process, ensuring her decision is respected and supported by healthcare professionals and her solicitor. The judge’s aim was to help the woman decide for herself rather than imposing a decision on her.
Key Facts
- •NR, a 35-year-old woman, is 22 weeks pregnant and detained under Section 3 of the Mental Health Act 1983.
- •NR has a history of drug and alcohol abuse and previous difficult pregnancies.
- •NR is ambivalent about continuing her pregnancy.
- •The only hospital with the necessary expertise is Homerton Hospital in London.
- •NR lacks capacity to decide on a termination due to her mental health condition.
- •The case focuses on NR's best interests regarding termination.
Legal Principles
Termination of pregnancy requires consent, either capacious or via the Court of Protection, but also necessitates two medical practitioners confirming the conditions of the Abortion Act 1967 are met.
S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10
If the conditions of the Abortion Act 1967 are met, the Court of Protection supplies the necessary consent, guided by the mother's best interests.
Re X (A Child) [2014] EWHC 1871 (Fam)
Relevant information for assessing capacity to decide on termination includes understanding the procedure, its effects, risks, and safeguarding measures.
Re H (An Adult; Termination) [2023] EWCOP 183 and S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10
Best interests are determined considering the patient's welfare (medical, social, psychological), treatment nature, prospects, likely outcomes, and the patient's (or likely) attitude. Wishes and feelings are considered individually, not objectively.
Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67
In best interests decisions, the court considers the incapacitated person's wishes and feelings, beliefs, values, and other factors they would likely consider if capable. The court does not consider the foetus's interests.
Mental Capacity Act 2005, Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215
A drastic order like termination is inappropriate unless continuing the pregnancy puts the mother's life or long-term health at very grave risk, or conversely, forcing a mother to continue an unwanted pregnancy is inappropriate if the conditions of the Abortion Act 1967 are met.
Re X (A Child)
The Court of Protection can make declarations about capacity and the lawfulness of acts, including omissions, relating to a person.
Mental Capacity Act 2005, section 15
Outcomes
The court refused to declare that a termination is lawful and in NR's best interests.
NR's wishes are ambivalent and contradictory, reflecting a conflict rather than a clear preference for termination or continuation. The court prioritizes NR's autonomy to make the decision.
The court approved a revised care plan that prioritizes NR's autonomy, enabling her to make the decision with support, and declared the care plan lawful.
The plan provides a structured process where NR can choose at each stage until an irreversible point is reached. This respects NR's right to decide, taking into account her conflicting feelings and the complexities of the situation.