Pregnancy termination, mental capacity and best interests in the Court of Protection

A new decision from Mr Justice Hayden highlights the legal intricacies surrounding best interests decisions in respect of pregnancy termination where someone lacks mental capacity.  

The case concerns NR, a 35-year-old woman who is 22-weeks pregnant and currently detained under section 3 of the Mental Health Act (MHA). NR has two daughters now in their teens who were both removed from her care. She had also previously experienced a miscarriage and a termination when she was 15 years old.

NR has been expressing uncertainty about whether or not she wishes to continue with her current pregnancy and carry the baby to term. The application in question was made to the Court of Protection with a view to obtaining a declaration that it is lawful and in NR’s best interests to have a termination.

Capacity analysis

Termination of a pregnancy is not treatment for a mental illness as under the MHA, and so the correct statutory regime under which the judge considered capacity is the Mental Capacity Act (MCA). In February 2024, NR’s consultant psychiatrist met with her to discuss termination of pregnancy and NR was in effect “unable” and “incapable of” participating and as such was found to lack capacity in this respect (not disputed by any party).

The issues

NR’s own wishes and feelings on the subject were highly “conflicted” and Mr Justice Hayden considered at length the detailed chronology of her expressed views which show both a wish for a termination and also that she could not bring herself to do it.

He also considered at length the care plan for the termination procedure. Whilst finding the care plan “sensitively constructed”, he also noted that it represented a “significant ordeal” for NR.

Ultimately, and interestingly, Mr Justice Hayden found that despite NR not having capacity to make the decision, the decision should nevertheless be NR’s. He noted that while declarations in the Court of Protection usually make reference to best interests, this is not required by the statute (section 15 MCA). What is required is for the court to make a declaration as to lawfulness, while considering the best interests of the individual.

The care plan in question gives NR ‘”clear and tangible options” but the emphasis is on NR ultimately making the decision on whether or not she wishes to terminate her pregnancy.


Mr Justice Hayden declined to make a declaration that it was lawful and in NR’s best interests to have a termination. He did make a declaration that the care plan setting out how the termination would be progressed was lawful but interestingly, refused to go any further. He also made it clear that he would be in support of whichever decision NR came to make.


This decision is particularly thought-provoking in that while NR’s lack of capacity to make the decision was accepted, Mr Justice Hayden refused to make the decision on her behalf. He instead felt that it was important for NR to know that he was “respecting her rights as an autonomous adult woman to make this decision for herself, with the help of those she chooses to be advised by”.

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