An NHS Trust v CS (Termination of Pregnancy) [2016] EWCOP 10

​This case concerns an application for an order that it would in the best interests of a young woman (CS), who lacks capacity, to undergo surgery to terminate her pregnancy. The hearing was before Mr. Justice Baker.

​The Facts
CS has two children from a previous relationship which ended shortly before Christmas 2015. This relationship involved domestic violence perpetrated on her by the partner. 

Upon discovering she was pregnant, CS told a number of people she did not want to keep the baby. Her sister had accompanied CS to get a previous termination and CS again asked if her sister would accompany her to terminate this pregnancy.

CS was then assaulted by her partner which resulted in serious head injuries, fractures, intracranial bleeding and brain damage. CS remains in the applicant hospital receiving care and treatment.

The medical evidence shows that CS has been profoundly affected by her injuries resulting in her wandering, assaulting staff and falling over. Following a fall, her CT scan showed no evidence of recovery. CS is suffering from post traumatic amnesia and it is not known when this will cease.

The applicant made an urgent application as the time limit in which surgical termination can be carried out was due to expire in a week. After this date a termination may still be possible, but cooperation by the patient is required and this could not be guaranteed of CS.

The applicant submitted that CS did not have capacity as she is unable to understand or retain information due to her post traumatic amnesia and frequently unable to provide coherent answers. The Official Solicitor agreed with this analysis.

The Law
The court considered sections 1-4 of the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice at para. 3.14.
It considered CC v KK [2012] EWHC 2136 (COP) (paras. 18 to 25) and drew on the following key principles:

• A person is assumed to have capacity unless it is established otherwise. The burden of proof lies on the applicant. The standard of proof is the balance of probabilities.
• A person lacks capacity if at the material time she is unable to make a decision for herself due to an impairment of, or disturbance in the functioning of, the mind or brain. This test has two stages, the 'diagnostic test' as to whether there is an impairment and the 'functional test'.
• The question is: whether, at the date on which the court is considering, the person lacks capacity to make decisions as to the issue in question.
• The Code of Practice stresses that ‘it is important not to assess someone's understanding before they have been given relevant information about a decision’ (para. 4.16).
• As per Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at para. 58) - can the person ‘comprehend and weigh the salient details relevant to the decision to be made’.
• A person is not to be treated as unable to make a decision merely because she makes an unwise decision.
• The court must consider all relevant evidence and be aware of the difficulties which may arise as a result of close professional relationships.

Finally, the court considered PC v City of York Council [2013] EWCA Civ 478 highlighting the need for a sufficient causal relationship between the mental impairment identified and the inability to make the decision in question.

Decision
The court had two issues to determine:

1. Does CS lack capacity?
2. If so, what order should be made in her best interests?

Addressing the first issue of capacity, the court agreed the diagnostic and functional tests for capacity were satisfied. It was declared that CS lacked capacity to consent to medical treatment.

Turning to the second question, the court considered the evidence of CS's friends and family. Additionally, the court considered Aintree University Hospitals NHS Trust v James [2014] AC 591, Wye Valley NHS v B [2015] EWCOP 60 and Re X [2014] EWHC 1871 Fam.

It was found that, due to the clarity of CS's wishes prior to her injuries and in accordance with her overall health and welfare, it was in CS's best interests to authorise the termination of her pregnancy by surgery.
The prospects of an effective termination may have been lost if the decision as to termination were delayed.

Mr. Justice Baker declared it lawful for the applicant to use proportionate force. The applicant was directed to serve a plan on the Official Solicitor as to how restraint may be used if needed. In relation to costs, he ordered the applicant to pay 50 percent of the Official Solicitor's costs.

Discussion
The judgment accounted for the likelihood of future harm to CS:

"It is plain that continuing her pregnancy will involve a greater risk of injury to her physical health.  In saying that, I have regard to the opinion expressed by her consultant obstetrician that if she continues with the pregnancy it is more likely than not that as she becomes larger she will become more prone to falls and cause herself significant injury...It is therefore in my judgment likely that termination will promote her physical recovery and rehabilitation."

This case highlights the importance of weighing up all the evidence and applying all the relevant criteria when assessing capacity to make a decision, particularly where the individual in question has fluctuating wishes. Mr. Justice Baker was aided in this case by CS's clear unambiguous wishes prior to her injury, as opposed to her unclear and subsequently contradicted wishes to keep the baby. He was also impressed by evidence from her supportive family and friends who were instrumental in the proceedings in explaining past and present circumstances.

Read the full text of the judgment on Bailii