Woman detained under mental health law can make abortion decision – judge rules

A pregnant woman detained under the terms of mental health legislation is capable of deciding whether to have an abortion even though doctors say such a move would not be in her best interests, a judge has ruled.

Judge Carolyn Hilder has questioned assessments made by specialists who concluded that the woman did not have the mental capacity to consent to a termination of her pregnancy.

The judge said clinicians may not agree with the woman’s reasons for seeking a termination but said their disagreement did not justify a conclusion that her decision-making was “incapacitous”.

She has outlined detail of her decision in a written ruling published online after analysing evidence at a hearing in the Court of Protection, where issues relating to people who may not have the mental capacity to take decisions for themselves are heard, in London.

The judge said the woman – who is in her 30s, more than 20 weeks pregnant and has been diagnosed as having bipolar affective disorder – could not be named in media reports of the case.

She indicated that the woman was in the care of Birmingham Women’s and Children’s NHS Trust and Birmingham and Solihull Mental Health Trust.

Lawyers representing the two trusts said “all clinicians” took the view that the woman “lacks capacity to make a decision about termination” because the “depressive aspects of her bipolar disorder” rendered her “unable to use and weigh relevant aspects of the decision”.

But John McKendrick QC, who represented the woman, said there was “no evidence sufficient to rebut the statutory presumption of capacity”.

Judge Hilder ruled in the woman’s favour.

The judge said it was “very far from clear” that the woman was made aware that she was being assessed when she met two specialists.

She referred to an “unsatisfactory approach” and said: “There is nothing in the written records which clearly identifies the information which (her) treating clinicians considered to be relevant to the process of (her) deciding whether to have an abortion.”

Judge Hilder added: “The clinicians may not agree with (her) reasons for seeking termination.

“They are free to disagree, but their disagreement does not justify a conclusion that (her) decision-making is incapacitous.

The judge went on: “Even if aspects of her weighing are influenced by symptoms of her diagnosed condition, I am not satisfied that (she) is unable to use or weigh the information relevant to making a decision about termination of her pregnancy.

“Rather, in my judgment she is demonstrating the application of her own values to the decision in question.”

She said she had made a declaration that the woman had the “capacity to consent to a termination of her pregnancy”.

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