Re AB (Termination of Pregnancy)  EWCA Civ 1215
Abortion "The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes. ... [I]n my judgement, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Appeal
In re AB (Termination of Pregnancy)
2019 June 24; July 11
McCombe, King, Peter Jackson LJJ
Mental disorder— Incapable person— Best interests— Doctors seeking declarations permitting termination of pregnancy of incapacitous adult— Judge determining termination in patient’s best interests— Whether judge erring— Abortion Act 1967 (c 87) (as amended by Human Fertilisation and Embryology Act 1990 (c 37), s 37(1)), s 1(1) — Mental Capacity Act 2005 (c 9), s 4(6)(7)
AB was a 24-year-old woman with moderate learning disabilities. She exhibited challenging behaviour and functioned at a level of between six and nine years old. During a visit to Nigeria to stay with family she became pregnant. Upon her return to the United Kingdom, the NHS Foundation Trust responsible for her antenatal care conducted a number of social and psychiatric assessments and concluded that it would be in her best interests for the pregnancy to be terminated. It being common ground that AB lacked capacity to consent to a termination, and AB’s adoptive mother, CD, being implacably opposed to that course of action, the Trust made an application to the High Court, inter alia, for a declaration that it was in AB’s best interest for the termination to be performed. The judge, having heard a considerable body of medical evidence, found that allowing the pregnancy to continue to full term carried risks to AB of increased psychotic illness, trauma from the C-section delivery that was planned, trauma and upset of the baby being removed and the risk of the baby being placed with CD which would result in AB having to leave her home. The potential benefits to AB were those of her having a child born alive and the possibility of some form of future contact from which she might take some joy. Weighing those factors in the balance, the judge found that it was in AB’s best interests to have the termination. CD, supported by the Official Solicitor representing AB’s interests, appealed on grounds that the judge had (i) erred in making certain findings of fact which had impacted on the best interests analysis, (ii) erred in failing to have regard for the need for powerful evidence that the continuation of the pregnancy posed a risk to AB’s life or grave risk to her long-term health within the meaning of section 1(1)(b) of the Abortion Act 1967 in determining whether termination was in her best interests and (iii) failed to have full regard to AB’s wishes and feelings.
On the appeal—
Held, appeal allowed. The ability of the court to make a finding that it was in the best interests of an incapacitous person that her pregnancy be terminated was not dependent upon section 1(1)(b) of the Abortion Act 1967 being satisfied and the court having powerful medical evidence of risk to the mother’s life or grave risk to her long-term health. That did not mean that the medical evidence did not require careful evaluation and in the present case the fact that the experts were agreed that on balance the termination would be less traumatic for AB than having the baby and the baby then being taken away was a factor to be weighed in the balance. However, that evidence did not, without more, convincingly demonstrate the need for such profound intervention in AB’s private life. While the judge had been entitled to take into account the fact that AB would be unable to care for the baby and to place weight on the traumatic effect on AB of having her baby taken away from her, her conclusion that AB was at risk of losing both her baby and her home was not supported by the evidence. Furthermore, in making the best interests decision, the judge had not had sufficient regard to the wishes and feelings of AB, as required under section 4(6) of the Mental Capacity Act 2005, or to the views of CD, the social worker and the Official Solicitor as required by section 4(7) of the 2005 Act . That had been a significant omission. In all those circumstances, the judge had fallen into error in failing to have adequate regard to the non-medical factors in the case and her declarations that would have permitted the termination to take place would be set aside (paras 26, 42–43, 46, 48, 55, 64–67, 73–80).
In re X (A Child) (Capacity to Consent to Termination)M; 139 BMLR 143 considered.
Decision of Lieven JM reversed.
John McKendrick QC and Victoria Butler-Cole QC for AB’s adoptive mother, CD.
Fiona Paterson for the NHS Foundation Trust.
Katie Gollop QC (instructed by the Official Solicitor) for AB.
Parishil Patel QC for the local authority.
Reported by: Giovanni D’Avola, Barrister
Abortion Act 1967 (c 87) (as amended by Human Fertilisation and Embryology Act 1990 (c 37), s 37(1)), s 1(1)
Mental Capacity Act 2005 (c 9), s 4(6)(7)