Alex RKThe very difficult case of Rotherham and Doncaster and South Humber NHS Foundation Trust v NR & Anor [2024] EWCOP 17 concerned a pregnant woman, detained under the Mental Health Act 1983, who was ambivalent about carrying her baby to term. She had an extensive history of drug and alcohol abuse. This was her fifth pregnancy. She had two daughters, H and L (now in their teens), both of whom were removed from her care. H was 10 years of age when removed and L, 9 years. The children’s social care records reveal that NR experienced difficulties with her mental health during the pregnancy with H. When NR was approximately four months pregnant with H, she attended the hospital on what was described as “multiple occasions”, reporting self-harm. Following the birth of her second daughter, she was identified as suffering from post-natal depression. NR was, in this period, living with the father of the children, BG, who was a violent man who subjected her to repeated domestic violence. At the time, the judgment records, she was unable to understand or confront the effect of this violence on either her or the children. BG has had no contact with the children for several years. NR had experienced a miscarriage in the past and a termination of pregnancy prior to the birth of her daughters when she was 15 years of age.
As regards her capacity, the evidence of her responsible clinician, Dr A,[1] and its implications was recorded at paragraph 12 thus:
On 23rd February 2024, Dr A met with NR in her room, which I note was at her request, supported by a staff nurse with whom she felt comfortable. The discussion revolved around “termination of pregnancy” in its broadest and non-specific sense. NR understood what the word involved but she declined to hear anything as to what the procedure would entail at this stage for her. When I say declined to hear anything, I should emphasise that she was completely adamant that she did not want to know anything about what would actually be involved. She has, by and large, stuck to this view throughout these enquiries. This poses rather a challenge in assessing her capacity. As I have set out above, an understanding of what the termination procedures is a significant facet of evaluating P’s understanding. Of course, it is not axiomatic that a refusal to think about something infers an inability to do so. However, Dr A told me that it is the agitation caused by her mental health condition that prevents her from engaging in a consideration of what is involved in the termination. He told me that she was, in effect, “unable” and “incapable of” participating. It is this that renders her incapacitous. No party disputes this conclusion and I have accepted the analysis as rebutting the presumption of capacity erected by the MCA 2005.
The much more difficult question was at best interests, given the consistently inconsistent statements that NR was making as regards her pregnancy. Having reviewed the evidence at some length, Hayden J identified at paragraph 37 that:
NR finds herself on the horns of the most invidious dilemma. She clearly, and most probably correctly, apprehends that if she carries the baby full term, it will be removed from her at, or shortly after birth. This may even be her wish, though she plainly anticipates the possibility of being ambushed her own emotions. Many of the notes set out above reflect NR, at very least contemplating these possibilities. Equally, she plainly contemplates a termination, even though that may not sit easily with her prevailing beliefs. Ultimately, I do not, as I have said, find that the evidence in this case supports a determined view either to terminate or to continue with the pregnancy. The evidence, in my judgement, reflects a woman who is paralysed by conflict, which is pervasive. I accept Dr A’s opinion that her unwillingness to confront the practical realities of the termination is also a facet of her mental ill health. However, NR certainly confronts the ethical and emotional aspects of both the termination and a continued pregnancy. Even if they are to be regarded as distorted by her condition, they are real for her and require to be afforded both weight and respect. I emphasise that I am entirely satisfied that it would be wrong and unsafe to draw a concluding view as to what NR’s wishes and feelings truly are.
Hayden J therefore had to look more widely to determine where NR’s best interests lay, and read into the judgment the detailed plan for the termination procedure should it go ahead. He then zeroed in on the discussions that the Official Solicitor’s representative, Ms Crow, had had with her, and in particular this passage from one of her attendance notes:
I explained to [NR] that my role is to make sure that the Judge knows what she would like to happen and so I wanted to be sure I had that right. I summarised that she had said that she didn’t want to have the baby and that she would like a “caesarean” to terminate the pregnancy, and that she would like this to be done under a general anaesthetic. [NR] said that was right. She said that she was getting hot and so she moved seats and removed her fleece top; she had another jumper on underneath. [NR] said “you can’t really tell [I am pregnant], can you?”. I confirmed that if I didn’t know then I wouldn’t necessarily be able to tell. [NR] said “I don’t really like people to see it [her bump]. I think it is a boy, I saw the scan and thought that. It is not like I don’t want it, but I just don’t think I would be able to cope”. I told [NR] that I thought she was being very brave and she said “I don’t want it, it will make me more ill and my family don’t want me to have it. I need to make the right decision for me for once”.
Hayden J considered that NR’s conclusion that she needed to make the right decision for her “captures where her best interests lie, i.e. that this decision should be NR’s” (paragraph 47. He also agreed that this case was similar to that of Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37 where, although he had similarly found the person to lack capacity on the central issue, he had nonetheless left the decisions to him, because he had considered that the priority was to recognise and enable him to assert his own autonomy. He considered that this was precisely what he wished to achieve with NR:
50. What is required is that the Court, having considered best interests, makes a declaration as to lawfulness. The care plan which has been dynamic and has evolved during this hearing now emphasises the importance of helping NR to reach a decision by giving her clear and tangible options but emphasising that the decisions are hers. The amended plan sets out its overall aim in the introductory paragraphs in these terms:
“Prior to the commencement of this plan (preferably in the days before), staff at [the Yorkshire hospital] will take [NR] through the stages involved in the plan, explaining to her what is involved at each stage, that it is [NR]’s choice whether to go through each and every stage and that she can stop the process at any stage until the termination has reached an irrevocable stage…”
51. The centrality of NR’s autonomy is emphasised throughout the plan, and I am entirely satisfied, is recognised by all involved:
[NR] will not be compelled to undertake the termination or to undertake any of the stages in the plan. The staff shall use their clinical judgment (including verbal encouragement and discussion) to support [NR] to make her choice whether to go through each stage in the plan. No coercion or force will be used”.
52. The initial application for a declaration was that I should state that it is lawful and in NR’s best interests to have a termination. I expressly decline to make that declaration. I do, however, approve the proposed care plan and confirm the lawfulness of it. Thus, I make a declaration that the care plan, setting out the arrangements for a termination of NR’s pregnancy is lawful. I go no further. So far, the options presented to NR have been uncoupled from the practical realities. There is now a finely structured plan where a decision, one way or the other, is unavoidable. It is important that NR knows that I am respecting her rights as an autonomous adult woman to make this decision for herself, with the help of those she chooses to be advised by. I should also like Ms Crow to explain to NR that whatever decision she takes, will have my fulsome support. As I discussed during the course of the hearing, a copy of this judgment is to be made available to all the key professionals involved in the plan in order that they know the reasoning behind the conclusions I have reached and what the objective of the plan is.
Comment
On the face of it, it might seem somewhat odd for the court at the same time to conclude that the person lacks capacity to make the decision in question, but that it is in their best interests for them to decide what should happen (or perhaps, to be more precise, for their choice to be respected as determinative[2]). It might also seem somewhat odd for the court to decline, expressly, to make any best interests decision, given that a key part of its statutory raison d’être is to make such decisions on behalf of individuals unable to do so. It might, finally, be thought somewhat odd on the facts of the case that NR was, in fact, unable to make a decision about whether to undergo a termination given the passage of the attendance note of the meeting with Ms Crow that Hayden J placed such weight upon.
However, taking a step back, it might equally be said that this case represented a truly CRPD-compliant approach to supporting the exercise of legal capacity by NR and, ironically, but importantly, did so by focusing not on NR herself, but rather on those who would need to act upon her wishes and, in effect, telling them that they would be legally determinative. Whether, ultimately, the choice NR may make is one that she recognises then or after the event as being ‘the right one’ for her is a matter for her and her alone.
[1] Note, no independent expert appears to have been instructed in this case to report upon capacity.
[2] Given that the MCA 2005 refers expressly to a person’s mental capacity to make the decision in question, by definition a view expressed where it has been held that they do not have that capacity cannot, legally, be a ‘decision’ in the sense of an act with an automatically determinative legal effect.
