Court of Protection Deliberates Autonomy in Pregnant Woman's Mental Health Treatment

Citation: [2024] EWCOP 17
Judgment on


In the case of Rotherham and Doncaster and South Humber NHS Foundation Trust v NR & Anor [2024] EWCOP 17, the Court of Protection grappled with a complex and sensitive issue involving the autonomy of a pregnant woman, NR, who was detained under the Mental Health Act 1983 and experienced ambivalent feelings about the continuation of her pregnancy. The Honorable Mr. Justice Hayden delivered a nuanced judgment that highlights the balance between respecting the autonomy of an individual and ensuring their best interests are met within the framework of the Mental Capacity Act 2005 and the Abortion Act 1967.

Key Facts

NR, a 35-year-old woman with a history of drug and alcohol abuse and mental health issues, was pregnant and expressed conflicting feelings regarding carrying her pregnancy to term. Medical evidence suggested that terminating the pregnancy was not treatment for her mental illness and, as such, the Mental Capacity Act 2005 was the appropriate statute for consideration. The judgment acknowledges NR’s fluctuating views on undergoing a termination, her past medical history, and her complex relationship with her unborn child, which included both a desire for and a resistance to the termination.

The legal principles at issue in this case revolve around assessing capacity consistent with the Mental Capacity Act 2005 and the best interests test grounded in the same act, as well as ensuring the lawfulness of medical treatment as per the Abortion Act 1967.

  1. Mental Capacity Act 2005: This act emphasizes the presumption of capacity, where every adult has the right to make their own decisions unless proved otherwise. The case law [Re H (An Adult; Termination) [2023] EWCOP 183] and [S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10] elaborates on the relevant information necessary to assess capacity to make a decision to terminate a pregnancy.

  2. Best Interests Test: The court’s role is to decide what is in the individual’s best interests, considering their “welfare in the widest sense,” as established in [Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67]. This includes considering the individual’s expressed wishes and feelings, beliefs, and values, even if they lack capacity.

  3. Abortion Act 1967: This act sets out the legal framework for the conditions under which abortion can be carried out lawfully. Consent is fundamental to the lawfulness of abortion, as recognized in [Re X (A Child) [2014] EWHC 1871 (Fam)].

  4. Autonomy and Individuality: The case law [Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215] emphasizes the importance of respecting and maximizing the individuality and autonomy of the person who lacks capacity.


Mr. Justice Hayden did not make a declaration that a termination is in NR’s best interests, but did declare the proposed care plan setting out the arrangements for a termination as lawful. This care plan allows NR the autonomy to make her own decision regarding the termination at each stage, provided that her condition does not override her ability to make such a decision.


In conclusion, Mr. Justice Hayden’s judgment in Rotherham and Doncaster and South Humber NHS Foundation Trust v NR & Anor crafts a delicate balance between respecting NR’s autonomy and recognizing the limitations imposed by her mental health condition. By foregrounding autonomy in the process of decision-making, the court underlines the crucial role of autonomy and individuality within the application of the Mental Capacity Act 2005. Notably, this judgment elucidates that while the court’s role includes safeguarding the best interests of the incapacitated person, it equally has a duty to respect and provide scope for the individual to exercise their own will as far as possible.

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