Re SB

A pregnant 37-year-old woman diagnosed with bipolar disorder was compulsorily detained under Section 2 of the Mental Health Act 1983. She had been on and off medication for 8 years and had suffered both remissions and relapses, due to which she was detained at various times in Italy, France and in England where she currently resides.

At the time of trial, the patient adamantly wished to terminate her pregnancy. She once terminated a pregnancy in 2011 at its nineteenth week as she was concerned about the effect of the high level of medication she was taking due to her bipolar disorder on the fetus. She initially wanted to keep the baby. however, a month before trial, she went off her medication and subsequently decided not to keep the baby. It was during this period that the patient’s mother and husband noticed significant changes in her attitude and she once threatened the husband with a knife. She visited a clinic to have an abortion but did not go to the follow up appointment as it was too far. Shortly afterwards, she was compulsorily detained but remained adamant about wanting an abortion.

Her treating doctor as well as an independent psychiatrist gave evidence that she does not have the capacity to come to a decision whether or not to keep the pregnancy, even if she has “litigation capacity.” In contrast, another doctor described to her the health concerns of a possible abortion and became satisfied that she understood the risks.  The pregnancy was in its twenty-third week, which is the last week the law allows for an abortion, giving the matter significant urgency.

The hospital, on May 15,2013, issued the proceedings in the Court of Protection seeking – “a determination by the court and the associated declarations under s.16 MCA 2005, as to: (1) whether [the patient] lacks capacity to make decisions about the desired termination of her pregnancy; (2) if she lacks capacity, whether it is in [the patient’s] best interests to undergo an abortion procedure.”

The Court held that the patient had the capacity to decide whether or not to terminate her pregnancy as section 1(4) of the Mental Capacity Act (the Act) provided that someone was not to be treated as unable to make a decision simply because it was an unwise decision.

The relevant question under section 2 of the Act was whether the patient was unable to make a decision and whether she was able to understand the relevant information and process the reasonably foreseeable consequences of her action. The Court found without a doubt that the patient had made a decision and persisted in such decision. Her family members argued that she was not processing the reasonably foreseeable consequences of a decision to terminate and would regret her decision. While not completely rejecting the family's view, the Court noted heavily that the patient did not regret her previous abortion and believed the other doctor who said that the patient understood the risks of having another abortion.

The Court believed that the patient held multiple rational reasons for wanting to terminate her pregnancy, even if her thoughts were influenced by paranoid beliefs. The Court noted her rational worries of being in a loveless marriage, the difficulty she would face in raising a child with her relapsing bipolar disorder  and her being pregnant during her current state of compulsory detention. To allow the mental health factors to dictate that the patient did not have capacity “would be a total affront to the autonomy of” the patient. The Court also noted  her suicidal thoughts at the prospects of having to carry this child to term.

“Fifth, the protection which the law affords to the foetus is the protection of the Abortion Act 1967 and other legislation, such as sections 58 and 59 of theOffences Against The Person Act 1861. But, subject to that, the foetus has noindependent rights which fall to be weighed or considered by me at all in these proceedings. Some people may consider that the law should be otherwise. But the law is currently as I have just stated it, and that is the law which I must apply” Para 7.

“I wish to make crystal clear that I do not in any way whatsoever question or reject the evidence of either Dr. T or Dr. Smith insofar as it is evidence within their professional domain. I unreservedly accept that the patient is currently mentally unwell, and I accept their diagnoses. I unreservedly accept, therefore, that she does currently suffer “an impairment of, or a disturbance in the functioning of, the mind or brain.” That, however, is the beginning not the end of the enquiry; for the relevant test and requirement under section 2 of the Mental Capacity Act 2005, as I have already quoted, is that because of such an impairment or disturbance the person “at the material time … is unable to make a decision for himself.” Para 37

“It seems to me, therefore, that even if aspects of the decision making are influenced by paranoid thoughts in relation to her husband and her mother, she isnevertheless able to describe, and genuinely holds, a range of rational reasons forher decision. When I say rational, I do not necessarily say they are good reasons, nor do I indicate whether I agree with her decision, for section 1(4) of the Act expressly provides that someone is not to be treated as unable to make a decision simply because it is an unwise decision. It seems to me that this lady has made, and has maintained for an appreciable period of time, a decision. It may be that aspects of her reasons may be skewed by paranoia. There are other reasons which she has and which she has expressed. My own opinion is that it would be a total affront to the autonomy of this patient to conclude that she lacks capacity to the level required to make this decision. It is of course a profound and grave decision, but it does not necessarily involve complex issues. It is a decision that she has made and maintains; and she has defended and justified her decision against challenge. It is a decision which she has the capacity to reach. So for those reasons I conclude that it has not been established that she lacks capacity to make decisions about her desired termination, and I will either make a declaration to that effect or dismiss these proceedings.” Para 44