Alex RKThe Court of Appeal has now given its reasons ([2019] EWCA Civ 1215) for its decision in Re AB to overturn the decision of Lieven J that it was in the best interests of a young woman with moderate learning disabilities to undergo a termination. As many will know, matters proceeded at speed in the case, Lieven J giving her judgment on the Friday, and the application for permission (by AB’s mother) being made on the Monday morning, the hearing of the appeal being that afternoon, and the decision being announced at the conclusion of the hearing. Several weeks later, the Court of Appeal has now set out its reasons for – unusually – reversing an evaluative judgment of a first instance judge as to best interests.
Background
AB was a 24-year-old woman with moderate learning disabilities. She exhibited challenging behaviour and (in the words of the Court of Appeal) functioned at a level of between 6 and 9 years old. At the turn of 2019, AB was staying with her family in Nigeria and, in circumstances which were unclear, became pregnant; a fact that was discovered by her adoptive mother (CD) upon AB’s return to this country in April 2019.
Capacity assessments were undertaken early in May which concluded that AB lacked the capacity to decide whether to continue with the pregnancy. CD was wholly opposed to abortion both from a religious and cultural point of view; she was a devout Roman Catholic and in Nigeria, she said, terminating a pregnancy was ‘simply unheard of’. On 16 May 2019, by which time AB was about 16 weeks pregnant, CD arrived at the hospital with AB, together with all of AB’s possessions packed into three suitcases and two rucksacks. CD told the hospital that she was ‘handing over’ the care of AB. Since that time, AB had lived in a residential unit. In her statement, CD said that she did not do this for fear of being ostracised by her community if AB had a termination, but because she felt she could not support AB in having a termination.
The NHS Foundation Trust responsible for the antenatal care of AB concluded that it would be in her best interests for the pregnancy to be terminated on the basis. CD was implacably opposed to the proposal and, accordingly, the Trust made an application to the High Court. By the time that the matter came before Lieven J, AB was 22, going on 23 weeks pregnant, which meant that there was considerable urgency to the decision as the latest possible date under the Abortion Act 1967 (in a case such as AB’s) for termination is 24 weeks’ gestation. Before Lieven J, CD maintained, contrary to her initial position, that she would then wish to have AB back to live with her even if she had a termination. As King LJ noted:
The rights and wrong of all of this were not matters with which the judge needed to concern herself and, for my part, the relevance is only in that it highlights that AB’s home circumstances are complicated and that it would be naive to presume that an easy solution to the conundrum presented to the court would be for AB to have her baby and move back home where she and her baby would live with, and be cared for, by CD.
The task of the court
Helpfully, the Court of Appeal outlined what the task of the court was in a case such as this:
Given that the doctors were united in their view that the test in s1(1)(a) Abortion Act 1967 was met [ie that continuing the pregnancy involved a greater risk to the mental health of AB than if the pregnancy were terminated],the role of the court [is] to consider, by way of an evaluation of all the material factors, whether it would be in the best interests of AB to provide the consent necessary in order for the proposed termination to take place. It follows that, whilst the court’s task in identifying the best interests of AB may overlap with the task of the doctors in applying the Abortion Act, they are not one and the same: Re X (A Child) [2014] EWHC 1871 per Munby J (as he then was) at [6-7].
On behalf of CD, it was submitted, in reliance on Re X, that:
terminating a pregnancy without the consent of the woman carrying the child represents such a profound invasion of her Article 8 rights that it should only ever be contemplated where section 1(1)(b) of the Act is satisfied, that is to say “the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman”.
Eleanor King LJ, on behalf of the Court of Appeal, did not go this far, but emphasised that:
However one looks at it, carrying out a termination absent a woman’s consent is a most profound invasion of her Article 8 rights, albeit that the interference will be legitimate and proportionate if the procedure is in her best interests. Any court carrying out an assessment of best interests in such circumstances will approach the exercise conscious of the seriousness of the decision and will address the statutory factors found in the Mental Capacity Act 2005 (MCA) which have been designed to assist them in their task.
Having rehearsed the approach to best interests by reference to Aintree, and, in particular, paragraph 24 at which Lady Hale emphasised that it is a test containing a strong element of substituted judgment, King LJ noted that:
It is well established that the court does not take into account the interests of the foetus but only those of the mother: Vo v France (2005) 10 EHRR 12 at [81-82]; Paton v British Pregnancy Advisory Service [1979] QB 276; Paton v United Kingdom (1980) 3 EHRR 408. That does not mean that the court should not be cognisant of the fact that the order sought will permit irreversible, invasive medical intervention, leading to the termination of an otherwise viable pregnancy. Accordingly, such an order should be made only upon clear evidence and, as Peter Jackson LJ articulated it in argument, a “fine balance of uncertainties is not enough”.
he decision of Lieven J
Lieven J had held that:
62. Focusing on AB and her own facts, the risks of allowing her to give birth are in no particular order; increased psychotic illness; trauma from the C section; trauma and upset of the baby being removed and the risk of the baby being placed with CD and AB losing her home as well as the baby. The benefits are that of her having a child born alive and the possibility of some, albeit future contact. She may take joy from this, it is not possible to know.
63. In my view the balance in terms of AB’s best interests lies in her having the termination. I should make clear that I do not underestimate the harm from this course, but I think that it is clearly outweighed by the harm from continuing the pregnancy.
The appeal decision
The first ground of appeal was that Lieven J had erred in finding that, if AB’s pregnancy continued to term, her baby would be removed by way of protective order on the part of the local authority and/or placed too much weight on this factor in the best interests analysis.
On the facts, Eleanor King LJ considered that:
The judge was entitled to take into account the expert evidence available which stated categorically that AB would be unable to care for a baby. The judge, far from improperly anticipating future events, was simply expressing the sad reality of the situation, namely that AB is incapable of caring for herself, let alone a baby. Based on the totality of the evidence from both the lay and medical witnesses, it cannot be said, or even argued, that for the judge to have concluded that AB will be unable to care for her baby, was premature, inappropriate or discriminatory.
However, Eleanor King LJ found that Lieven J had erred in
extrapolating from that finding a real risk that the baby would be placed with CD and that, as a consequence, AB would lose her home as well as her baby, a finding that erroneously impacted on the best interests analysis.
The second ground of appeal was that Lieven J had erred in failing to carry out a detailed and careful balancing exercise in respect of whether termination or planned caesarean section were in AB’s best interests, having regard to the need for powerful evidence of risk to the mother’s life or grave risk to the mother’s long-term health of continued pregnancy.
Eleanor King LJ identified that:
The unenviable task facing the judge was, amongst all the other factors, to weigh up the psychiatric/psychological risks to AB of each of the two alternatives as presented to her by the doctors:
i) Termination would be at a stage requiring invasive intervention to bring the pregnancy to an end at a time when AB has an increasing awareness (but very limited understanding) of her pregnancy. AB knows she has a “baby in her tummy” and that it will be born. There is an acceptance by all the parties that AB was, and is, at the very least, ‘engaged’ with the pregnancy and has indicated on occasions that she likes the idea of having the baby;
Or alternatively,
ii) The continuation of the pregnancy to term when the baby would be born by caesarean section and would be taken away from her, if not immediately, then very soon thereafter.
Eleanor King LJ did not express a view as to whether this ground of appeal was, itself, made out, but noted, “[w]hilst ultimately the three experts were in agreement, it can be seen that they were faced with a most challenging task in trying to determine which of the two outcomes would be the worst for AB and ultimately the view was one expressed to be ‘on balance’.”
The third ground of appeal was that the judge erred in failing to have full regard to AB’s wishes and feelings and/or her Article 8 right to motherhood.
Eleanor King LJ found that:
Whilst it is clear that the judge did not apply any “automatic discount” to AB’s view [to use the phrase from Peter Jackson J’s judgment in Wye Valley], in my judgement she failed to take sufficient account of AB’s wishes and feelings in the ultimate balancing exercise. The fact that they might in the end be outweighed by other factors does not alter the fact that this was a significant omission.
Interestingly, Eleanor King LJ also then went on to consider separately AB’s beliefs and values, noting that
57. No reference is made in the judgment to the beliefs and values that would be likely to influence AB had she capacity, nor were any submissions made in relation to “beliefs and values” to this court.
58. It is undoubtedly the case that AB has been brought up in a community whose religious and cultural beliefs and values are strongly opposed to abortion. This cultural background and these religious beliefs could, in the right circumstances, have a profound impact upon the best interests assessment. AB, however, has never had capacity and there can therefore be no direct evidence as to her actual beliefs and values; who can say if she might not have lost her faith or rebelled against the tenets of her community by the time she reached her twenties. It may be that, had she capacity, she would have been heavily influenced by the beliefs governing her community, but there is no evidential basis for concluding that to be the case, and to import those views into the best interests analysis would be mere speculation.
59. It follows that the fact that the judge did not refer specifically to s4(6)(b) does not represent a shortcoming in her best interests evaluation; in other cases it might be different.
Turning to consultation, Eleanor King LJ considered that Lieven J had erred in failing to place in the balance as to what outcome was in AB’s best interests either the views of her mother or her social worker, noting that:
CD and Ms T each know AB better than the assessing psychiatrists could possibly do notwithstanding the lengthy, caring and careful assessments they had carried out. The judge had the expert evidence of the psychiatrists on the one hand and the views of those who know AB best on the other, but she did not weigh them up, the one against the other.
Conclusion
Eleanor King LJ’s conclusions should be set out in full:
71. Part of the underlying ethos of the Mental Capacity Act 2005 is that those making decisions for people who may be lacking capacity must respect and maximise that person’s individuality and autonomy to the greatest possible extent. In order to achieve this aim, a person’s wishes and feelings not only require consideration, but can be determinative, even if they lack capacity. Similarly, it is in order to safeguard autonomy that s1(4) provides that “a person is not to be treated as unable to make a decision merely because he makes an unwise decision”.
72. It may be that, on any objective view, it would be regarded as being an unwise choice for AB to have her baby, a baby which she will never be able to look after herself and who will be taken away from her. However, inasmuch as she understands the situation, AB wants her baby. Those who know her best, namely CD and her social worker, believe it to be in AB’s best interests to proceed with the pregnancy as does the Official Solicitor who represents her in these proceedings.
73. The judge’s conclusion as to what was in AB’s best interests was substantially anchored in the medical evidence. In my judgement, that medical evidence, without more, did not in itself convincingly demonstrate the need for such profound intervention.
74. The judge was entitled to take into account the fact that AB would be unable to care for her baby and to place weight on the traumatic effect on AB of having her baby taken from her, but in my judgement she went beyond what the evidence could support in finding that AB risked losing her baby and her home.
75. In many of the passages set out above, and in particular in her conclusion at [62], the judge made no mention of AB’s wishes and feelings or of the views of CD, the social worker or the Official Solicitor This was, in my opinion a significant omission.
76. 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.
77. These were all important features of the case and needed to be part of the decision-making process, all the more so given that the medical evidence was, substantially, based on an attempt (albeit by experts) to assess AB’s likely emotional reaction to each of two traumatic events.
78. I am conscious that, to borrow from Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 1 WLR 1119, this is an appeal:
“15…..against a discretionary order, based on an evaluative judgment of the relevant facts. In the ordinary course, this court would not disturb such an order unless the court making it had erred in principle or reached a conclusion that was plainly wrong.”
79. To this I add that I also have in mind that the judge made her decision having heard the oral evidence and having written a careful and thoughtful judgment produced under considerable pressure of time. However, in 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.
Procedural matters
Eleanor King LJ was very concerned about how matters had come to court:
The Trust issued its application on 21 May 2019 by which time AB was 18 weeks pregnant. Keehan J gave directions on 3 June 2019 and listed the matter for hearing on 20 June. In her judgment Lieven J deprecated that proceedings were not issued by the Trust for some 5 weeks after they were aware of the pregnancy. I endorse her view. In fairness to the Trust however, it should equally be noted that having issued the proceedings, a further 4 weeks elapsed before the matter was heard. I am conscious that Trusts are rightly reluctant to make such applications and properly aim to reach agreement with the family in such fraught situations. I am also conscious that the courts are overwhelmed with urgent work and also that any judge giving directions for trial, in a case of this type, will be alert to the need to ensure that the trial judge has, in particular, the medical evidence necessary to inform the decision-making process. In my judgement however, an application for a declaration which will permit a Trust to carry out termination on a woman lacking capacity should be regarded and litigated as a medical treatment issue of the utmost urgency.
14. Given the critical urgency of such a case, it may be that, where it appears to a Trust that there is a potentially intractable divergence of views with the family, consideration should be given to an application being made at an early stage following the making of the “best interests” decision. The application should then be listed as a matter of urgency, even if it is subsequently withdrawn. If the pregnancy is allowed to reach a very late stage and a termination is then determined to be in the best interests of the mother, she will be unnecessarily exposed to what is on any view a highly invasive and, for a woman lacking capacity, bewildering procedure. (In saying this I accept, of course, that there will inevitably be occasions where the pregnancy does not come to the authorities’ attention until it is well established.)
Comment
The decision of Lieven J made very considerable waves, and caused (sometimes ill-informed) criticisms. It is very unusual for a judgment on best interests to be overturned by an appellate court on the basis that it was wrong, but it is difficult to escape the feeling that this was justified on the extremely difficult and finely balanced facts of this case; it is also difficult to escape the feeling that the decision at first instance might have been different had there been more time properly to undertake the exercise mandated by s.4 MCA 2005. I also anticipate that paragraph 71 of the Court of Appeal’s judgment will feature regularly in future judgments as encapsulating the correct approach to best interests decision-making.
