An NHS Trust v D

The Defendant is a young adult who has suffered from severe schizophrenia for some considerable time. She was admitted to hospital in September 2002 pursuant to the provisions of the Mental Health Act 1983. Upon admission it was discovered that she was pregnant. She was at the time aged just 18. The Defendant’s treating doctors formed the view that a termination of the pregnancy was necessary to prevent grave permanent injury to her physical or mental health. Her treating psychiatrist, Dr S, together with the consultant gynaecologist, Mr C, signed a certification pursuant to the Abortion Act 1967 to that effect.

On 8^th November 2002 I heard an application brought by the Claimant for a declaration that it could lawfully carry out a termination of the Defendant’s pregnancy.

On the basis of all the evidence, I found that the Defendant was suffering from a mental incapacity which rendered her incapable of making an informed decision about the proposed termination.

I further found that the proposed procedure was in the Defendant’s best interests as the risks attendant upon the Defendant’s pregnancy continuing to full term were very significant and far outweighed the risks attendant on the termination. Accordingly, I granted the declaration sought by the Claimant (see [2002] EWHC (Fam) 3189).

During the course of the application an issue was raised as to whether, in any event and in the light of existing case law, it had been necessary for the Claimant to have sought a declaration from the Court at all. In relation to the instant application, particularly in light of the initial lack of consensus amongst the parties and medical experts, I was in no doubt that it had been proper for the Trust to make the application. However, prompted by the parties (the health trust and the official solicitor) who were concerned that the situation might now be different in the light of the “Human Rights” legislation, I indicated that I would be prepared to hear further submissions on this wider issue should the parties, on reflection, wish to obtain guidance in relation to it.

Following the hearing and judgment I was asked to consider the wider issue and I therefore adjourned the matter, and the parties appeared before me again for further argument on 25^th September of this year.

The medical termination of pregnancy is regulated by the Abortion Act 1967. Section 1 makes it lawful to perform a termination within certain limits and subject to the satisfaction, certified in good faith by two medical practitioners, of either of the following:

No distinction is made in the Act between those patients who possess the requisite capacity to consent to the termination, and those who lack the competence to do so. It is a matter, apparently, for the doctors to certify; that is all that is required.

The court’s jurisdiction to make decisions regarding the lawfulness of treatment of mentally incompetent adults is by now well established. Treatment without consent is ordinarily unlawful. The court’s jurisdiction to consent to treatment on behalf of mentally incompetent adults outside the limits of mental health legislation was removed by the Mental Health Act 1959. As Lord Browne-Wilkinson remarked in Airedale NHS Trust v Bland [1993] AC 835 (at 883), “no one has been able to explain why Parliament chose to take this course (indeed it has been suggested that it was an accident)…”.

In order to allow the court to deal with such difficult cases, the House of Lords established a principle in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, based on the well-recognised doctrine of necessity, allowing a doctor to lawfully treat a patient who cannot consent if it would be in the best interests of the patient to receive such treatment. Lord Brandon said at 56:

“The application of the principle which I have described means that the lawfulness of a doctor operating on, or giving other treatment to, an adult patient disabled from giving consent, will depend not on any approval or sanction of a court, but on the question whether the operation or other treatment is in the best interests of the patient concerned. That is, from a practical point of view, just as well, for, if every operation to be performed, or other treatment to be given, required the approval or sanction of the court, the whole process of medical care for such patients would grind to a halt.”

Whilst a declaration of the court was not necessary to establish the lawfulness of the proposed treatment, there were however certain circumstances in which good practice would nonetheless require it. The speech of Lord Brandon (at 56) set out the parameters thus:

“That question is whether, in the case of an operation for the sterilisation of an adult woman of child-bearing age, who is mentally disabled from giving or refusing her consent to it, although involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice. In considering that question, it is necessary to have regard to the special features of such an operation. These features are: first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims.”

At 57 he continued:

“Having regard to all these matters, I am clearly of the opinion that, although in the case of an operation of the kind under discussion involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice. There may be cases of other special operations to which similar considerations would apply. I think it best, however, to leave such other cases to be examined as and when they arise.”

It was not long before the question of termination of pregnancy in a mentally

Sir Stephen Brown P held that the termination of a pregnancy was already closely

Sir Stephen Brown P did however note that this was “a developing branch of the law” (at 330). At the conclusion of his judgment, he referred to the work being undertaken at the time by the Law Commission on the general issue of mental incapacity. He said (at 331-332):

“No doubt the particular situation arising in cases of the termination of pregnancy will be considered in the Law Commission’s current investigation, and it may be that further guidelines will be issued by the Medical Ethics Committee of the British Medical Association, in addition to recommendations which may be made by the Law Commission. For the time being, however, I express my view that a formal declaration is not required in this case.”

The Law Commission’s report was finally published in 1995. Its recommendation in respect of abortion was that it be placed in the “second opinion category” – that is to say, that it should not be necessary to seek court authorisation, and that instead it should require a certificate from an independent medical practitioner stating that the person lacks capacity and that the treatment is in her best interests. (See the Law Commission’s report at page 87, and clause 8(3)(c) of the Draft Bill, Mental Incapacity, Law Com No 231). Importantly, it was the Commission’s view that the procedures in the Abortion Act did not of themselves adequately protect young women lacking capacity, upon whom terminations were being performed without in all cases a proper investigation of their capacity.

Nearly thirteen years after the President gave his judgment in Re SG, the work of the Law Commission has not yet resulted in legislation. Progress has however been made, and a Draft Mental Incapacity Bill was published in June this year. The draft Bill does not deal specifically, as the President had anticipated it would, with the question of abortion. It does not take up the Law Commission’s proposals in respect of abortion, as outlined above. It does however provide for a “general authority” to act lawfully on behalf of an adult lacking capacity, provided the act is in the patient’s best interests. It is proposed that the court will continue to have the powers currently exercised in the inherent jurisdiction to make declarations giving consent to medical treatment.

The guidance produced by the BMA has not developed much further the approach to be taken in these cases. In its publication, The law & ethics of abortion, revised in December 1999, it simply advises:

“Health professionals approached by a pregnant woman lacking the capacity to give a valid consent must use their professional judgment to assess the patient's best interests.” (See http://www.bma.org.uk/ap.nsf/Content/abortion)

Finally, I note the guidance given by Wall J in Re SS (an adult: medical treatment) [2002] 1 FCR 73 (at paragraph 59):

“Pregnant patients in psychiatric hospital are not unusual. The issue of the termination of pregnancies in such circumstances must arise frequently. It seems to me essential that each hospital should have a protocol to deal with possible terminations of such pregnancies, and that these protocols should be designed to address the issue in good time so that, wherever practicable and in the interests of the patient, a termination can be carried out at the earliest opportunity. Furthermore, any such protocol should ensure that the patient is referred at an early stage to independent legal advice, whether from the Official Solicitor or the solicitor who, as in this case, appears to have represented her at the Mental Health Review Tribunal.”

Following Re F, there were a number of subsequent cases dealing with sterilisation of a mentally incapacitated adult. I was referred by the Official Solicitor to a series of those cases, starting with Re GF (medical treatment) [1992] 1 FLR 293. In that case Sir Stephen Brown P held (at 294) that it is not necessary to apply to the court for a declaration authorising a sterilisation procedure, if two medical practitioners are satisfied that (1) the procedure is necessary for therapeutic purposes, (2) the procedure is in the best interests of the patient, and (3) there is no practicable, less intrusive means of treating the condition.

This approach was however called into question by the Court of Appeal in Re S(adult patient: sterilisation) [2001] Fam 15. In that case the current President, Dame Elizabeth Butler-Sloss P, said (at 28) that the criteria set out by Sir Stephen Brown “ought to be cautiously interpreted and applied”. Thorpe LJ (at 32) said:

“Sir Stephen Brown P's test was necessarily expressed in broad terms. Anything so stated offers a margin to whoever interprets and applies it. In my opinion any interpretation and application should incline towards the strict and avoid the liberal. The courts are not overburdened with applications in this field. Indeed they are rare. In view of the importance of the subject, if a particular case lies anywhere near the boundary line it should be referred to the court by way of application for a declaration of lawfulness.”

It is worthwhile recalling the purpose of the declaratory jurisdiction. In Re S (hospital patient: court’s jurisdiction) [1996] Fam 1, Sir Thomas Bingham MR said (at 18):

“[I]n cases of controversy and cases involving momentous and irrevocable decisions, the courts have treated as justiciable any genuine question as to what the best interests of a patient require or justify. In making these decisions the courts have recognised the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable; they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; and they have recognised the desirability, in the last resort, of decisions being made by an impartial, independent tribunal.”

The Trust’s position was that in the light of the Defendant’s incapacity and the existence of the Abortion Act certificate, its application for a declaration in this case had not been strictly necessary. It relied on the principles set out in Re SG. Nevertheless, it had chosen to apply for the declaration.

The Trust submitted that in cases where the circumstances were similar to those in Re SG, it should be neither necessary nor desirable for application to be made to the Court for a declaration. The reasoning of Sir Stephen Brown P in that case remained correct, and in the majority of cases a termination would not be sufficiently “special” to require the court’s intervention. The Trust did however go on to submit that under certain circumstances a proposed termination might in fact fall into the category of “special”, in which case it would be appropriate to apply for a declaration.

The Trust listed six suggested circumstances which would be capable of conferring special status on a proposed termination and call for an application to the Court:

The Official Solicitor submitted that the present case provided the court with the opportunity to revisit the guidance given by the President in Re SG, and to consider the developments in the law since 1991. The effect of the guidance in Re SG is that at present the medical profession makes the decision on behalf of the mentally incapacitated patient regarding termination of her pregnancy, a decision encompassing an assessment of her best interests in both a medical and general welfare sense.

The Official Solicitor did not submit that the court’s involvement would be necessary in each and every case in which the termination of a mentally incapacitated patient’s pregnancy arose. Such a course, he submitted, would be neither necessary nor practical. Instead, he reversed the test and submitted that the court’s guidance would not be required if all of the following conditions were met:

Should any one of the above conditions not be met, the Official Solicitor submitted that an application should be made for declaratory relief. As can be seen there is little of substance between the parties.

The effect upon a mentally incapacitated woman of terminating a pregnancy should not be underestimated. Whilst it may be true that the overall effect of a termination may not be as pronounced as that of a sterilisation procedure, it is nevertheless a very intrusive procedure with irreversible consequences, however commonplace it might now have become. The opportunity for a woman to become pregnant again does not detract from this fact. The issues raised by a proposed termination can be complex and difficult, and they may in the harder cases be finely balanced.

The safeguards provided by the Abortion Act 1967 provide comprehensive and adequate protection for competent adults who have made their own decision to terminate a pregnancy. A mentally incapacitated woman however does not have the opportunity to weigh all the factors and make a decision for herself. If the guidance in Re SG were to be strictly applied, it would leave responsibility for all such decisions for mentally incapacitated women, regardless of the circumstances, with their medical professionals. This cannot be correct in all circumstances.

The advent of the Human Rights Act 1998 has enhanced the responsibility of the court to protect positively the welfare of these patients, and in particular to protect the patient’s right to respect for her private and family life under Article 8(1) of the European Convention on Human Rights.

I have no doubt that the carrying out of a termination in accordance with requirements of the Abortion Act 1967, in circumstances where an incapacitated patient’s best interests require it, is a legitimate and proportionate interference with Article 8(1) rights carried out for the protection of health under Article 8(2). I also accept that (as Wall J observed) proposed terminations of pregnancies in mentally incapacitated women are not uncommon. And I agree that it would be both impractical and unnecessary to require that in each case an application to the court be made for a declaration of lawfulness. In my view, where the issues of capacity and best interests are clear and beyond doubt, an application to the court is not necessary.

However, there will be other circumstances in which the authorisation of the court is required in order to avoid any doubt as to the legitimacy of the Article 8 interference. In my view the six matters listed by Lord Brandon in Re F, are similarly engaged by the issues raised in termination cases, depending upon the individual circumstances of each case.

Accordingly, it is my view that where there is any doubt as to either capacity or best interests, an application to the court should be made. In particular, and without limiting the generality of that proposition, the following circumstances would ordinarily warrant the making of an application:

I would echo the guidance of Thorpe LJ in Re S(adult patient: sterilisation) that if any case is considered to fall anywhere near the boundary line in relation to any one of the above criteria, it should for the avoidance of doubt be referred to the court.

I would also reiterate the guidance given by Wall J in Re SS. The importance of making necessary applications in good time cannot be overstated. It is imperative that the medical profession ensures that adequate protocols are put in place for the timely resolution of these issues.

When this application was filed the circumstances initially fell into category (i), although by the time of the hearing there was almost no dissent between the parties. It was therefore entirely proper for the Trust to make this application in the present case.

The President has been aware of process of this application and has seen this judgment in final draft. She authorises me to say that she agrees with the guidance outlined at paragraph 34.