Woman with limited mental capacity can have her baby

A pregnant woman with significant mental health impairments will not have to undergo an abortion after a senior judge ruled that she had enough capacity to decide whether she wanted to become a mother.

The decision is a significant ruling which underlines the important legal point that those who lack the mental capacity to make decisions about key areas such as money and living arrangements may nonetheless be able to make deeply personal decisions about sex, relationships and giving birth.

The young woman, who is 18 weeks pregnant and cannot be named for legal reasons, was described in court as being in the “bottom one percent of the UK population” in terms of her cognitive abilities. Born with the genetic blood disorder sickle cell disease, she suffered from multiple strokes as a child that left her mentally impaired. She later won significant damages from a hospital in a medical negligence case and two deputies – her mother and a senior solicitor – were appointed by the Court of Protection to look after her “best interests” in the wake of the litigation.

The court was asked to decide whether the woman should go ahead with the pregnancy after the solicitor who acts as one of her deputies expressed concern that she might not have the required mental skills to decide whether she should give birth or seek an abortion when it emerged in November that she had fallen pregnant.

The views of her treating clinicians and independent psychiatrist Dr Stephen Tyrer were sought and all professionals agreed that she had the capacity to decide what she wanted to do with the pregnancy. The court also heard that she was supported by a loving family who looked after her and wanted her to press ahead with the pregnancy.

Mr Justice Hedley, sitting in the Court of Protection at London’s High Court, ruled that while the woman “manifestly lacked capacity” to participate in legal proceedings, she nonetheless did have the ability to “decide whether or not to continue with, or terminate, pregnancy”.

In his ruling the senior family court judge, who is set to retire shortly, warned that courts and health officials should generally refrain from trying to decide whether someone with limited mental functions will be able to bring up a child and must instead concentrate solely on whether the pregnancy itself is in their best interests.

“My instincts are that has nothing to do with the issue of whether a pregnancy should continue simply because once a child is born, if the mother doesn’t have the ability to care for a child, society has perfectly adequate processes to deal with that,” he said. “I’m anxious about there being brought into capacity assessments – in relation to this issue – the ability to care for a child in the future.”

Ha also warned that people with severe learning problems who have some capacity must be allowed to make decisions – even if they are bad choices.

“Anyone who has sat in the family jurisdiction as long as I have spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships,” he said. “The purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do.”

The case highlights how capacity can often be a grey area that the court has to decide on. Patients in comas or those with severe physical impairments are clearly unable to make any decisions about their life. But those with learning difficulties and impaired mental faculties often show a much greater degree of autonomy in their decision making.

In such cases the Court of Protection has been called upon to rule whether an individual can make deeply personal decisions about sex and relationships. In early 2011, for example, a judge ruled that a gay man called “Alan” who had an IQ of 48 should be stopped from having anal sex because he lacked capacity to consent to sexual relations. However, in an illustration of how capacity can be both won and lost, the judge also accepted that Alan might one day be able to make decisions about safe sex if adequate sex education was provided by the local authority.

In another similar and tragic recent case, the court was asked to rule whether a young woman with severe learning difficulties should be sterilised because she kept falling pregnant. The woman’s mother wanted the procedure to take place immediately after an imminent caesarean section to deliver her daughter’s baby. The request was eventually withdrawn before further hearings could be called to decide on an outcome.