Intended for healthcare professionals


Abortion: Two trusts are criticised for inadequate assessment of woman’s capacity to decide

BMJ 2022; 376 doi: (Published 15 March 2022) Cite this as: BMJ 2022;376:o687
  1. Clare Dyer
  1. The BMJ

A judge has criticised two NHS trusts for flawed assessments concluding that a pregnant woman detained under the Mental Health Act lacked the capacity to decide whether to have an abortion and for their failure to take the issue to court.

The case reached the Court of Protection on the day before the time limit for a lawful termination expired, but only because the woman, referred to as S, found solicitors who secured an urgent court hearing. Judge Carolyn Hilder ruled that S was able to take the decision for herself, contrary to the assessments carried out by two consultants, an obstetrician, and a psychiatrist.

Hilder said that the case should have been brought to court much more promptly and by one or both of the trusts, Birmingham Women’s and Children’s NHS Trust and Birmingham and Solihull Mental Health Trust. Their failure to issue proceedings meant that the court was required “'to make a decision on an issue of utmost gravity and sensitivity under extreme time pressure,'” she added.

“'The decision whether or not to terminate a pregnancy must surely involve one of the most serious interferences with a person’s rights under the European Convention on Human Rights,” said Hilder. “It is deeply regrettable that S was left, in a situation of detention by the state and at the cost of incurring personal debt, to bring these proceedings herself.”

S, who is 38, has bipolar disorder, which usually responds well to lithium, but she has been admitted to hospital four times, once under a section of the Mental Health Act. She has a degree in modern languages from Cambridge University, a job in marketing, and her own language tutoring business. She is in the process of buying a house.

After a relationship ended she worried that time was running out to become a mother and decided to use a sperm donor to conceive by IVF. She stopped taking her medicine, her mental health deteriorated, and at the end of January, when she was 19 weeks pregnant, she was sectioned. Her notes from the next day said that she was voicing doubts about continuing with the pregnancy.

Poor approach to assessment

On 9 February the consultant obstetrician’s assessment concluded, “Currently I do not believe that [S] has capacity to make the decision about termination of pregnancy. She is experiencing mania and this has markedly altered her beliefs about the pregnancy.”

A “best interests” meeting held on 18 February concluded that S lacked capacity to consent to termination of her pregnancy and that it would not be in her best interests to have an abortion. “No one in the treating teams proposed to take any further steps,” said Hilder.

On 27 February, after an urgent hearing was listed for the following day, S was assessed by a perinatal consultant psychiatrist who concluded, “In my opinion, her mental illness, on the balance of probabilities is having significant impact on her ability to weigh pros and cons of a decision whether to continue with pregnancy or not.”

The psychiatrist told the court that the decision as to capacity lay with the obstetrician, while the obstetrician said that psychiatrists were best placed to assess capacity. The order of events—obstetrician first, best interests meeting second, then psychiatrist—“lays bare a poorly constructed approach to assessment between the treating team of clinicians,” said Hilder. “The suggestion that they should have done a joint assessment seemed to come as a surprise.”

She said the clinicians noted that S’s wish for a termination was a marked change of position and that this coincided with a deterioration in her mental health. “They conclude that the wish for termination is a reflection of the negative cognitions of S’s mental health condition and therefore S lacks capacity to make the decision,” said the judge. “In my judgment this reasoning is not sufficient. A person can change their mind.”

Since the court proceedings S had become aware that social services might be involved if there was a live birth, information that was alarming to her and highly relevant to her decision, said Hilder. She was satisfied that S had enough “pieces of the jigsaw to see the whole picture.”

The two trusts said in a joint statement, “This is an extremely rare and complex case in which our medical and legal teams worked to provide care and expertise which we believed to be in the best interests of the patient and her unborn baby. We will review the detailed feedback from the court carefully and continue to work with, and provide support for, this individual.”

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