The Court of Appeal last month overturned a Court of Protection decision that it was in the best interests of a young woman with learning disabilities to undergo a termination of her pregnancy at 23 weeks gestation.
The case of AB while fact specific provides healthcare professionals with a reminder in two areas involving best interests decision-making:
- the importance of factoring in the wishes and feelings of P and other individuals, including the views of the Official Solicitor
- managing CoP applications in cases involving termination with regard to timing of applications
Some of you may be familiar with the facts of this case involving a pregnant 24-year-old woman with moderate learning difficulties and challenging behaviour. The NHS hospital responsible for AB’s antenatal care had carried out psychiatric and social assessments and concluded that it would be in AB’s best interests for the pregnancy to be terminated. CD, AB’s adoptive mother, was strongly opposed to the proposal on religious and cultural grounds and, as a consequence, the trust made an application to court.
The CoP made two declarations:
- AB lacked capacity to consent to the termination of her pregnancy; and
- It was in her best interests to undergo a termination.
CD, supported by the Official Solicitor who represented AB, appealed the CoP’s decision and the CoA set aside the declarations that would have permitted the termination to take place.
The decision: why did the CoA overturn the CoP’s decision?
A key theme is the requirement to consider P’s wishes and feelings.
It was the principle, successful ground of appeal that the High Court made a “significant omission” in not placing sufficient weight on AB’s wishes and feelings or on the views of CD, the social worker or the Official Solicitor.
In as much as AB understood the situation, she wanted to have her baby. Those closest to AB, including CD and her social worker, believed it to be in AB’s best interests to proceed with the pregnancy, as did the Official Solicitor.
The CoP’s conclusion as to what was in AB’s best interests was substantially anchored in the medical evidence. In the CoA’s view “medical evidence, without more, did not in itself convincingly demonstrate the need for such profound intervention.” While the CoP was entitled to take into account the fact that AB would be unable to care for her baby and to place weight on the traumatic effect on AB of having her baby taken from her, the Appeal Court concluded that it “went beyond what the evidence could support in finding that AB risked losing her baby and her home.”
The CoA concluded that “AB’s feelings were of importance and should have been factored into the balancing exercise alongside consideration of her wishes.”
The CoA’s concluding views are neatly summarised at paragraph 79 but make clear that the CoP had wrongly given insufficient weight to the non-medical factors in the case and while the views expressed by the doctors were “necessarily significantly predicated upon imponderables. 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.”
The case emphasises the importance of giving sufficient weight in the decision-making process to the wishes and feelings of P.
On a practical note, the CoA emphasised the need to make early applications in termination cases following the making of the “best interests” decision where there is a “potentially intractable divergence of views with the family”. The application should be made to the court urgently as this could always be subsequently withdrawn if agreement is reached with the patient’s family and the Official Solicitor.
Jill Mason, Partner and Head of Health & Care
Helen Burnell, Principal Associate