Woman with bipolar disorder can abort her baby, judge rules

BMJ 2013; 346 doi: (Published 24 May 2013) Cite this as: BMJ 2013;346:f3387
  1. Clare Dyer
  1. 1BMJ

A woman with bipolar disorder has been given the go ahead to have the abortion she wants after a Court of Protection judge ruled that she was capable of taking the decision.

The unnamed NHS trust caring for the 37 year old married woman, named only as Miss B, claimed that she had paranoid and delusional beliefs that meant she was incapable of weighing up the factors for and against a termination and deciding for herself.

A psychiatrist caring for her told Mr Justice Holman that he was “100% certain” that Miss B lacked the capacity to make a decision about termination. The judge said that psychiatric evidence about capacity was normally “determinative” in the Court of Protection, but after hearing from Miss B he concluded that there was “no doubt” that she was capable of taking the decision.

The NHS trust brought the case to the court, which takes decisions on behalf of people who are incapable of deciding for themselves, after Miss B, whose pregnancy was originally planned, decided not to go ahead with it. The trust was backed by the woman’s husband and mother, who were against the abortion.

But the judge said, “There is no doubt she has the capacity to make a decision. It would be a total affront to the autonomy of this lady to conclude that she lacks capacity to the level required to make this decision.”

Miss B is in a secure mental health facility after being sectioned under the Mental Health Act for allegedly attacking her husband with a knife while he was sleeping. Her family and doctors said that she was happy about the pregnancy until she stopped her medication, which she did to protect the unborn child.

She had booked appointments in April for an abortion, but when they did not go ahead she bought pills over the internet to induce a miscarriage. She was sectioned before she could take them, and the case came to court as the 24 week deadline for a termination loomed.

The woman told the judge that she planned to divorce her husband, whom she had married partly because “he was undocumented and had no right to be in the country.” She did not believe that she would be well enough to look after the baby as a single mother in a council flat and was frightened that if she had the baby her foreign husband would send it abroad to live with his family.

Asked what she would do if she were forced to go on with the pregnancy to term, she replied, “I would seek to kill myself and the baby.”

The judge said, “She is a lady of considerable intelligence, is well educated, including having a degree, and was previously working in a demanding professional job. She’s articulate, can clearly engage with her lawyers and the legal process, and can express perfectly what she wants to achieve.

“I cannot agree that she is lacking capacity to make such a decision.”

By the time the judge delivered his ruling, Miss B’s pregnancy had almost reached 24 weeks’ gestation, the upper time limit set for abortions in England, Wales, and Scotland, possibly leaving her short of time to get the necessary two doctors’ agreement.

But in exceptional cases an abortion may be performed later, not only in cases of serious fetal abnormality but where necessary to prevent grave permanent injury to the physical or mental health of the woman or where continuing the pregnancy would involve greater risk to her life than termination. This could include cases where suicide was a real risk.


Cite this as: BMJ 2013;346:f3387