On Friday 21 June 2019 Mrs Justice Lieven gave an ex tempore (spoken) judgment in open court in the Court of Protection, declaring that AB, a 24 year old woman who was 22 weeks pregnant, lacked capacity to consent to the termination of her pregnancy, and that it was in her best interests for a termination to take place. The first instance decision was subject to trenchant criticism by some. The Bishops’ Conference of England and Wales condemned it here. CitizenGO, a world-wide action group describing itself as made up of ‘social leaders and experts on themes such as family, life, and liberty’ immediately set up a petition seeking intervention by the Secretary of State for Health, arguing that ‘The Judge’s pro-abortion ideology is on clear display and her past abortion activism leaves her unfit to adjudicate this case.’ See here.
On Monday 24 June 2019 the Court of Appeal overturned the decision that the termination was in AB’s best interests, with their reasons being handed down on 11 July 2019. The fact of the successful appeal was widely reported before the reasons were available. See reports in the Guardian; Telegraph; Independent; and Sunday Times.
AB was born in Nigeria and has lived in the UK since 2007. She has a moderate learning disability, functioning at the level of a 6-9 year old with an IQ of approximately 35-49. Her language and communication are significantly impaired and she has a history of challenging behaviour, including self-harm and damage to property. The circumstances in which AB became pregnant are unclear, but the pregnancy became apparent when she returned from a trip to Nigeria in April 2019. All parties accepted that AB lacked capacity to consent to sexual relations and, as Mrs Justice Lieven pointed out, the pregnancy was therefore the consequence of rape.
The NHS Trust applied on 12 May 2019 to the Court of Protection for a declaration that it was in the best interests of AB to have a termination of her pregnancy. Both the Judge at first instance and the Court of Appeal expressed considerable regret that the application had not been brought in mid-April 2019 when the Trust had first become aware of AB’s pregnancy.
What did the Judge at first instance have to decide?
It was agreed by all parties that AB lacked capacity to decide for herself whether to terminate the pregnancy. It was also accepted that the treating doctors had formed the view that continuing the pregnancy involved a greater risk to the mental health of AB than if the pregnancy were terminated, and that if the court found that it was in the best interests of AB for the procedure to go ahead it would do so in accordance with the requirements of the Abortion Act 1967. The issue for the court was whether it was in AB’s best interests to provide the necessary consent on her behalf.
The Trust’s application was opposed by AB’s mother, CD, and by the Official Solicitor (representing AB). The Local Authority professed to be neutral although AB’s social worker said in evidence that she thought it was in her best interests to have the baby. CD, who had adopted AB in Nigeria when she was a few days old, objected to the procedure on both religious and cultural grounds. She was a devout Roman Catholic and stated that in Nigeria the termination of a pregnancy was ‘simply unheard of.’
How did Lieven J reach the decision that the termination should take place?
She identified the following relevant matters for consideration: ‘medical risks; psychiatric risks; emotional/psychological risks from termination; emotional/psychological risks from having the baby; AB’s wishes and feelings’.
She went on to consider each of these factors in turn:
- She found that there was a greater risk from giving birth under a general anaesthetic than there was from having a termination under general anaesthetic, that the caesarean section was a significant operation with physical consequences, and that there would be challenges in managing both pregnancy and birth for someone with AB’s level of learning difficulty. None of these were, however, determinative.
- There was an unquantifiable risk of postpartum psychosis if AB were to give birth, and if that occurred it could have lifelong traumatic effects for her.
- The Judge found that although AB would probably suffer some trauma or upset from the termination, that trauma would be less than the trauma she would suffer if she had the baby. She reached that view on the basis that:
- If AB had the baby she would not be able to care for the baby by herself and care proceedings were inevitable;
- There was a very real risk that the Local Authority would consider and the court would find that AB could not live with the baby (because of the risks she posed);
- If CD put herself forward as a carer for the baby (as she said she would), the likely consequence would therefore be that AB could no longer live with her mother;
- AB would then suffer the double trauma of having her baby taken away and of not being able to live with her own mother.
- In dealing with AB’s wishes and feelings she thought that AB ‘would like to have a baby in the way she would like to have a nice doll’ and found that she had no sense of the birth process or of what it meant to have a baby. Since AB’s wishes were ‘not clear’, the Judge did not feel she could give this factor very much weight.
- Carrying out the balancing exercise and finding that the harm from the termination was clearly outweighed by the harm from continuing the pregnancy, the Judge said ‘the risks of allowing her to give birth are in no particular order: increased psychotic illness; trauma from the caesarean section; trauma and upset of the baby being removed; and the risk of the baby being placed with CD and AB losing her home with her mother as well as the baby. The benefits are that of her having a child born alive and the possibility of some, albeit limited future contact. She may take joy from this, it is not possible to know.’
Why did the Court of Appeal overturn the decision?
CD’s application for permission to appeal was granted and the appeal was allowed. Commenting on the applicable law in cases where a termination of pregnancy is sought on behalf of a woman who lacks capacity, the Court of Appeal confirmed that the task of the doctors in applying the Abortion Act and the task of the court in identifying the best interests of AB might overlap but were not one and the same. As Munby J (as he then was) had said in Re X (A Child)  EWHC 1871:
‘since there can be no lawful termination unless the conditions in section 1 are satisfied, and since it is a matter for the doctors to determine whether those conditions are satisfied, it follows that in addressing the question of the mother’s best interests this court is entitled to proceed on the assumption that if there is to be a termination the statutory conditions are indeed satisfied. Two things flow from this. In the first place this court can proceed on the basis …that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or…that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of these conditions is satisfied the court is already at the position where, on the face of it, the interests of the mother may well best be served by the court authorising the termination.’
The Court of Appeal went on to consider how the best interests analysis had been conducted in the court below:
- Lieven J had not been wrong to conclude on the totality of the lay and medical evidence that AB would be unable to care for a baby. That was an important factor which she was right to weigh in the balance.
- However, she had been wrong to proceed on the basis that CD would be entitled to care for the baby. That was by no means a certain outcome bearing in mind the question mark over the circumstances in which AB had become pregnant and the fact that when AB was 16 weeks pregnant, CD had ‘handed over’ her care to the hospital because she felt she could not support or care for her if a termination was carried out.
- The Judge was therefore wrong to have concluded that AB would not only lose her baby but also her home and her relationship with CD, a finding which had carried considerable weight in her best interests analysis.
- Whilst the Judge’s findings about AB’s wishes being unclear could not be undermined, she failed to take sufficient account of her feelings and omitted them from consideration in the ultimate balancing exercise.
- She failed to weigh in the balance CD’s views (as AB’s carer) as to her best interests.
- She failed to give any weight to the opinion of AB’s social worker, who had the benefit of professional objectivity and who considered that it would be in AB’s best interests to have the baby, or to the views of the Official Solicitor, who had spent considerable time with AB.
- The Judge had based her conclusion on the medical evidence, which without more was insufficient to justify such a profound invasion of AB’s rights, and had failed to weigh that up against the opposing views of those who knew AB best.
This case was not about the politics of abortion. It was about whether it was in the best interests of a woman without capacity to undergo a termination in circumstances where, if it went ahead, it would be carried out lawfully and in accordance with the Abortion Act.
It is important to dispel the suggestion (see the link to the Citizen GO petition above) that the first instance decision was open to challenge because the Judge had ‘allowed her own view about ‘termination’ to cloud her judgment.’ Lieven J rightly identified that in considering the emotional or psychological impact on AB of the termination, there was a ‘real danger’ of imposing specific moral and philosophical views about termination onto a woman to whom concepts of choice and guilt were likely to mean very little. The Judge’s personal views, whatever they were, were irrelevant to the judicial task, did not feature in the judgment, and formed no part of the Court of Appeal’s analysis of where she had gone wrong.
Image courtesy of Katie Tegtmayer at Flickr.com with thanks