Imagine you are an appeal judge in a country that permits abortion under certain conditions. One day, you hear the case of a young woman unable to give consent to a termination due to her permanent mental disability and behavioural problems. Doctors who assessed her were unanimous that an abortion would be in her best interests. Her adoptive mother however was strongly against the idea. The judge in the high court declared that the young woman lacked legal capacity to consent to an abortion, but that it would be lawful and in her best interests for doctors to terminate the pregnancy. As an appeal court judge, what would you say?
Read the judgment
The imaginary scenario was true enough for all concerned in the recent case of ‘AB’, a young woman from Nigeria living in England with her adoptive mother, CD, who is also from Nigeria.
AB, aged 24, has a range of serious issues - learning disabilities, a variety of ‘challenging behaviours’, a functioning level of a child aged six to nine years old and an IQ in the range of 35 – 49. She is also on medication to help manage her mood. In October 2018, she went back to Nigeria on holiday. After she came back to the UK in April this year, it became clear she was pregnant. As the appeal court put it, if an abortion had been proposed at that stage, when she was 10 – 12 weeks pregnant, she would have been unaware of being pregnant and the pregnancy could have been ended ‘in a non-invasive way’.
But the tests, examinations and other issues that intruded pushed the decision about what to do into a completely different time-frame.
Assessments showed AB lacked capacity to decide whether to continue with the pregnancy but her mother, CD, who is a midwife, is ‘wholly opposed to abortion’ from both a religious and a cultural point of view. She is a devout Catholic and, in Nigeria, among the Ibo, she says, ‘terminating a pregnancy is “simply unheard of”,’ and that there was a ‘real stigma to having a termination’.
When AB was 16 weeks pregnant, CD arrived at the hospital with AB and all of AB’s possessions, saying that she was ‘handing over’ AB’s care. This was because she felt she could not support the proposal that AB should have a termination.
By the time the matter reached a hearing in court, her pregnancy was well advanced, something the appeal court would later criticize, saying an application for a declaration to permit termination on a woman lacking legal capacity should be litigated as an issue ‘of the utmost urgency’.
AB was at that stage more than 22 weeks pregnant, and if she had had an abortion it would have been highly complex, taking place over three days, with the second and third parts both necessitating a general anaesthetic. The Trust planned she should be told that they were ‘taking the baby away’, and she would be given a new ‘baby doll’ to keep and clothe.
The Trust argued it was in AB’s best interests to terminate the pregnancy and, given AB’s lack of capacity, asked for such a declaration by the court on the grounds that continuing the pregnancy involved greater risk to her mental health than if it were ended.
While the doctors were unanimous about what should happen, counsel for the mother asked about AB’s own ‘wishes and feelings’ and argued that terminating a pregnancy without the woman’s consent was a ‘profound invasion’ of her rights.
If she carried the baby to term, the local authority planned to assess the situation and if necessary, apply for the baby to be removed from AB. The appeal judges said the trial judge was entitled to take into account the expert evidence which said ‘categorically’ that AB would not be able to care for a baby. Allowing her to give birth risked increased psychotic illness, trauma from the C section and trauma over the baby being removed.
However, the appeal judges agreed that one factor had not been given enough weight: the mother’s wishes and feelings. At that stage, according to the evidence, AB’s perception seems to be of the baby as ‘like a nice doll’. But what about the views of the two people who knew AB best – her adoptive mother and the social worker, Ms T? They both knew her better than the assessing doctors ‘could possibly do’.
The appeal judges said that underlying the Mental Capacity Act was the idea that those making decisions for people who lacked capacity should respect that person’s individuality as much as possible. This meant considering their wishes and feelings and even allowing them to be ‘determinative’.
It may be, said the court, that it would be unwise for AB to have her baby – she will never be able to look after it herself and it would be taken away from her. But she wants the baby and those who knew her best said it would be in her best interests to continue the pregnancy. The trial judge anchored her decision ‘in the medical evidence’ and did not give enough weight to AB’s own wishes and feelings, or those of her mother and the social worker. Though the judge emphasized that AB’s ‘wishes’ were not clear, her ‘feelings’, mediated by those closest to her, should have been factored into the decision.
These ‘non-medical’ factors had not been given enough weight by the trial judge and in the end the evidence ‘was simply not sufficient to justify the profound invasion of AB’s rights’ as represented by a non-consensual termination of her advanced pregnancy.
The appeal was therefore allowed and the trial court’s declaration that would have permitted the abortion, was set aside.