Alex RKThe very difficult case of Re H (An Adult; Termination) [2023] EWCOP 183[1] stands out for the careful attempt by the judge – John McKendrick KC (sitting as a Tier 3 judge) to comply with (in CRPD language) the will and preferences of a woman with a mental disorder undergoing a profound crisis. The questions he had to answer were whether the woman, H, had capacity to make the decision to consent to terminate her pregnancy,[2] and, if she lacked that capacity, whether a termination was in her best interests; and, if a termination were to be in her best interests, whether this should be carried out by a medical procedure (i.e. the administration of drugs) or a surgical procedure.
Ms H was detained under the Mental Health Act 1983 and, with one exception, had been consistent in her wish to terminate her pregnancy, and the judgment contains numerous very graphic descriptions of how she was expressing her wishes. After some judicial probing to obtain clarification, it was common ground that the test under s.1(a) of the Abortion Act 196 had been met in that two registered medical practitioners had in good faith formed the opinion that the termination was less than 24 weeks, and that continuing the pregnancy involved greater risk to her mental health than if the pregnancy were terminated.
No one before the court contended that Ms H had capacity to make the decision whether to terminate her pregnancy, and, endorsing and applying the approach set down by HHJ Hilder in S v Birmingham Women’s and Children’s NHS Trust And Another [2022] EWCOP 10[3] to the relevant information, John McKendrick KC agreed that H lacked the material decision-making capacity.
No one before the court contended that a termination was anything other than in H’s best interests. In circumstances where there was in the view of the court, a “sustained negative view of her pregnancy and a sustained wish for a termination” (paragraph 116), John McKendrick KC identified that:
124. Considering the terms of section 4 2005 Act and the case law above [including the ‘usual suspects’ such as Aintree], in the context of this personal and profound decision for Ms H, I attach significant weight to her wishes and feelings. The fact that her wishes and feelings are supported by the two applicants, their professional witnesses and the Official Solicitor on her behalf, adds significant weight within my assessment of the section 4 2005 Act factors.
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126. Applying significant weight to Ms H’s wishes and feelings and the clear medical evidence which points to the significant harm to her mental health, and in the context of manageable risks to her physical health of what is often a routine medical procedure, I am satisfied that a termination represents the correct balancing of the section 4 2005 Act factors and make an order to that effect.
The much more difficult matter, however, was what form the termination should take – medical or surgical. Ultimately, and agreeing with the approach set out by the Official Solicitor, John McKendrick KC found that:
137. […] Ms H’s very strong wish for a termination and her stronger wish not to have a surgical termination have a powerful role in the section 4 2005 Act best interests analysis. Whilst I have found her to lack capacity to make this decision and I have found her to have false and delusional beliefs, the termination of her pregnancy remains a profoundly personal one for her. It may not matter very much to her whether the foetus is alive or dead, whether it is one foetus or twins or whether the conception was a result of rape. She has a visceral desire to be free from her pregnancy and she has elaborated consistently and clearly her firm desire for a medical termination and opposition to a surgical termination. This perspective is not one the court is unable to give effect to. On the contrary, it is supported by two NHS Trusts. It is also, on balance, supported by the Official Solicitor. Notwithstanding my concerns in respect of Ms H’s non-compliance with a medical termination and the risks of her being deeply anguished during the 24-48 hour period, I consider this less psychologically harmful to her than being conveyed and possibly restrained en route to Newcastle [where a surgical termination could take place], where she would then be faced with being in hospital against her will for around 24 hours and would quite likely require chemical or physical restraint, given her opposition to a surgical termination.
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139. Sadly, there is no good option for Ms H. Both procedures are fraught with risk to her mental health and lesser risks to her physical health. Having heard all the evidence and met with Ms H, when she clearly told me she wants a medical termination, respect for her autonomy and dignity in matters of her reproductive health, lead me, by applying section 4 of the 2005 Act, to authorise a medical termination in her best interests. I will make that order accordingly pursuant to section 16 of the 2005 Act.
Whilst he was content to the authorise covert medication as potentially having a “powerful role” in comforting Ms H (paragraph 140), John McKendrick KC was much more uncomfortable with the proposal to authorise restraint:
141. […] This arises primarily because the case articulated by the Trusts is that such a procedure is consistent with Ms H’s wishes. I also consider that the state must pause very carefully before authorising the restraint of a vulnerable young woman as she undertakes an intimate procedure in respect of her reproductive health. However, I am persuaded to authorise restraint only in circumstances where the medical termination has begun, Ms H has been administered the medication described above, but after the passage of time, either the foetus or placenta or both have not been discharged and the clinicians require, to protect Ms H’s safety, to carry out a vaginal examination.
However, he was not prepared to not prepared to make further orders or declarations beyond those identified above:
142. […] If there is a medical emergency then clinicians must be guided by what is necessary to safeguard Ms H’s life. Those clinicians, in the moment, are likely to have better information than the court has, considering hypotheticals now.
Having focused on Ms H’s immediate needs, John McKendrick KC concluded with a marker that:
144. […] I have not had time to consider whether this application has been delayed and whether it should have been brought earlier. If an application is made for further relief, I shall consider that matter. I note Mrs MH’s anguish that it has taken until now for a decision to be made on behalf of her daughter.
Comment
Unlike the only other reported case where the question of whether a termination is in the best interests of the woman lacking the material decision-making capacity – AB – this case was, on one view, ‘easier,’ because of the very clearly expressed, if incapacitous, wishes and feelings of Ms H. However, following through on her will, and her preference not to have a surgical termination, placed the court in a very difficult situation. And, as with his judgment in Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35, John McKendrick’s judgment here is conspicuous in the way in which he sought to work methodically (even under very considerable time pressure) through that dilemma.
Procedurally, John McKendrick’s observations in relation to his judicial visit are also of wider relevance:
12. At the outset of the hearing on 16 October 2023 I was informed by Mr Hallin that Ms H wished to meet with the judge who was making the decision. I consulted the Practice Note on Judicial Visits found at [2022] EWCOP 5, dated 10 February 2022. I endeavoured to follow this guidance. I consulted with the parties regarding the purpose of the meeting and the practicalities. I agreed to meet with Ms H by way of Microsoft Teams with her solicitor, Ms O’Connell, present. Ms O’Connell took a note of our meeting which I approved the following day which was then circulated to all parties. When I met with Ms H she was in a room at the hospital where she is detained. She was initially present with her two support workers and Ms G (the family liaison officer). As she is a witness, I asked Ms G to leave, which she agreed to. I spoke with Ms H for around ten minutes in the presence of her two support workers. She was agitated. She told me she was wanted a termination and when I asked her whether she would want a medical or surgical termination she clearly chose a medical termination.
13. The purpose of my visit was largely to comply with Ms H’s wish to meet with the judge. Given the terms of section 4 (4) of the 2005 Act, there is a duty on the court “so far as reasonably practicable, [to]permit and encourage [Ms H]to participate, or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her.” I did not require to see Ms H to ascertain her wishes and feelings. These had been comprehensively set out in a most helpful attendance note exhibited to a witness statement (see below).
14. A decision to terminate a pregnancy is a profoundly personal one. It would have been inconsistent with the duty on the court to both promote Ms H’s autonomy, and to respect her dignity, for the judge not to have met with her, at her request. It was a privilege to meet with Ms H.
[1] Note, this case citation is clearly wrong, because the Court of Protection has decided very many more than 183 cases in 2023, only 46 have so far been placed in the public domain with neutral citations. For people who want to understand more about why so many cases are not reported, section 2.4 of this article may be useful.
[2] Parenthetically, and whilst this was the way it was framed before the court, it might in this case be thought that it was not so much a question of consent to a termination, but rather to seeking a termination, in the same way that in JB’s case, it was not a question of consenting to sexual relations, but seeking to engage in sexual relations. Indeed, later in the judgment, the judge talks in terms of “capacity to decide whether to terminate her pregnancy” (see, for instance, paragraph 106 ff).
[3] And gently but firmly distinguishing the somewhat problematic decision of Holman J in Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1471 (COP).
