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AB is twenty-four. Born in Nigeria, she was adopted at birth by CD, though lived in Nigeria for many years whilst her adoptive mother worked in London as a midwife. When she was 12, AB moved to London, and it became apparent that she had significant developmental delay, with an IQ in the range of 35-49. In association with this she has profound behavioural difficulties, her mood managed by medication. Established in London, she lived largely with her grandmother, although CD lived with them for substantial periods.

In May 2017, AB's grandmother died, causing AB great loss and distress. Henceforth, she has lived with her mother. During prolonged leave in Nigeria, AB fell pregnant, diagnosed by her mother at around 11 weeks' gestation in mid-April 2019. It was inevitably concluded that AB lacked capacity to decide whether to continue with the pregnancy; the Trust mooted the idea of termination.

CD was wholly opposed to termination both on religious and cultural grounds. A Roman Catholic, she observed that in Nigeria terminating a pregnancy is ‘…simply unheard of’. Four weeks later, CD took her daughter to the hospital with all her possessions packed in three suitcases and two rucksacks, telling the hospital she was ‘handing over care’ of her daughter. She felt she could not support AB in having a termination. Subsequently, AB has lived in residential care.

The Trust made an application to the High Court at 18 weeks' gestation, seeking a declaration that in the circumstances termination was lawful, consistent with the Abortion Act 1967. The Trust concluded that termination was in AB’s best interests. The hearing commenced when AB was in her 23rd week of pregnancy.

The Official Solicitor represented AB, and supported her mother in opposing an order that would result in termination. Whilst the local authority was neutral, AB’s social worker also opposed termination. The judge recorded CD’s view that her daughter would be very upset by having a termination, but never did she thereafter weigh this in the balance when considering AB’s best interests. Equally, the judge gave no weight to the evidence of the social worker who had known AB for two years, and who had told the court that it would be in her interests to have the baby. This contrasted with medical evidence that after full term delivery, AB might suffer psychosis, although acknowledged that quantification of such an illness was unknowable.

The court was told that AB’s termination of pregnancy would be a two-stage surgical procedure over two days, performed under general anaesthetic. AB would be told that they were ‘taking the baby away’, and to ‘…minimise the potential impact of not having a baby girl to take home with her, AB can be given a new baby doll soon after the procedure to keep with her.' The judge concluded that the ‘…trauma or upset of having a termination… (would pose) a lesser impact than having a baby.' Accordingly, the declaration that termination was lawful was made.

The Official Solicitor appealed this decision, and three days later the case was heard in the Court of Appeal. Their judgement was handed down on 11 July, by which time termination had not and would not take place. In AB’s circumstances, termination could not be made lawful by the Abortion Act since the pregnancy was now in its twenty-fifth week.

In upholding the appeal, the court found that in her conclusions, the High Court judge made no mention of AB’s wishes or feelings or of the views of CD, the social worker, or the Official Solicitor. Furthermore, the court was required to consider AB’s 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.'

The point was made that her mother and social worker knew AB better than any of the assessing psychiatrists instructed in the case. Their opposing evidence was not weighed against that of the doctors.

The Mental Capacity Act 2005 is founded, in part, on the basis that those who make decisions on behalf of people who lack capacity must respect and make the most of that person’s autonomy and individuality. Even where a patient lacks capacity, her wishes and feelings not only must be considered but they can in some circumstances be determinative. It is to safeguard this principle that the Act provides that ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision.'

Robert Wheeler
Department of clinical law, August 2019

Justifying termination of pregnancy