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Family Law

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Court of Protection Practice and Procedure Conference 2016

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30 MAY 2013

CAPACITY: Re SB (A Patient: Capacity to Consent to a Termination) [2013] EWHC 1417 (COP)

(Court of Protection, Holman J, 21 May 2013)

The 37-year-old woman had in the past 8 years presented with symptoms diagnosed as those of bi-polar disorder and had been compulsorily detained at various times in Italy, France and England. She denied her illness but that in itself was a feature of bi-polar disorder and the medical evidence pointed to that diagnosis. The woman met an Egyptian man, who she later married, and fell pregnant but had a termination in Italy when she was 19 weeks pregnant. When she once again fell pregnant, after the marriage, the mother claimed she wanted to have the baby and she conscientiously attended for ante-natal care.

However, when the mother stopped taking her medication at around 17 weeks' gestation her behaviour deteriorated: she brandished a knife at her husband; put her hands around his throat; and there was a total reversal in her attitude towards her unborn baby. She twice made appointments to have a termination and even bought medication over the internet to induce a miscarriage. She was thereafter compulsorily detained under s 2 of the Mental Health Act 1983 but maintained her wish to terminate the pregnancy. She made contact with a doctor who had fully explained the proposed procedure and its associated risks and had satisfied himself that she fully understood them. He was currently minded to certify as required by the provisions of s 1(1)(a) of the Abortion Act 1967, subject to another doctor's approval.

The hospital where the woman was residing did not consider that she had capacity to consent to the termination and applied to the Court of Protection for a determination of whether she did in fact have capacity in this regard and if she lacked capacity for a decision as to whether it was in her best interests to proceed with the termination. The woman was represented by the Official Solicitor who obtained a report from an independently instructed consultant psychiatrist. The report concluded that she had capacity to litigate and therefore the Official Solicitor's appointment was brought to an end and the woman attended court in person.

During the hearing the woman's treating psychiatrist expressed his belief that the woman's fears of her husband and mother being unsupportive were due to her illness creating paranoid beliefs and for that reason she lacked capacity.

Holman J unreservedly accepted that the woman was currently mentally unwell and that she therefore suffered from an ‘impairment of, or a disturbance of the functioning of the mind or brain'. Once the issue was before the court it was a matter for the judge to overall assess whether the person could make a decision. Holman J found that she did have capacity to make a decision and had made one several weeks previously in her determination to have a termination. During the course of her evidence the woman provided a number of reasons for her decision and voiced her entirely rational worry of her ability to raise a child with her illness.

Even if aspects of the decision making were influenced by paranoid thoughts in relation to her husband and her mother, she was nevertheless able to describe, and genuinely held, a range of rational reasons for her decision. It was not necessary for her reasons to be good reasons or for the court to agree with her decision, for section 1(4) of the Act expressly provided that someone was not to be treated as unable to make a decision simply because it was an unwise decision. The woman had made, and had maintained for an appreciable period of time, a decision. It may be that aspects of her reasons may be skewed by paranoia but there were other reasons which she had and which she had expressed. It would be a total affront to the autonomy of the patient to conclude that she lacked capacity to the level required to make this decision. The judge would either make a declaration to that effect or dismiss the proceedings.

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