Court of protection authorises medical termination for patient lacking capacity

Background

On 16 August 2024, the Cardiff and Vale University Health Board applied to the Court of Protection for an order regarding NN, a patient detained under the Mental Health Act 1983. The application sought a declaration that it was lawful and in NN's best interests to offer her a termination of pregnancy, with provisions for restraint and sedation if necessary due to non-compliance.

Patient's Circumstances

NN, a 32-year-old woman with a history of substance abuse and schizophrenia, had been detained under the Mental Health Act multiple times. At the time of the hearing, she was 21 weeks and four days pregnant, having expressed a desire for a termination since June 2024, although inconsistently.

Legal and Medical Considerations

The Court of Protection was tasked with determining whether NN had the capacity to decide on the termination. Evidence from NN's psychiatrist and obstetrician indicated that she lacked the capacity to make an informed decision due to her mental health condition and cognitive impairments.

Judgment

Deputy Judge Victoria Butler-Cole KC ruled that NN lacked the capacity to decide on the termination. The court authorised aspects of an amended treatment plan that engaged NN's rights under Article 5 of the European Convention on Human Rights, ensuring that any medical intervention would be in her best interests.

Outcome

Following the hearing, NN proceeded with the medical termination without the need for restraint or sedation. She accepted pain relief and returned to her psychiatric unit within 24 hours, with her Responsible Clinician reporting positive progress.

Costs and Delays

The Official Solicitor argued that the Health Board delayed unreasonably in issuing proceedings, impacting NN negatively. The court ordered the Health Board to pay 100% of the Official Solicitor's costs, reflecting the court's disapproval of the delay.

Implications

This case underscores the complexities involved in medical decisions for patients lacking capacity, particularly concerning time-sensitive procedures like terminations. It highlights the need for timely applications and clear communication among healthcare professionals and legal teams.

Legal Framework

The judgment referenced the Abortion Act 1967 and the Mental Capacity Act 2005, emphasising the legal requirements for capacity assessments and the role of the Court of Protection in authorising medical treatments involving deprivation of liberty.

Learn More

For more information on medical negligence, see BeCivil's guide to Medical Negligence.