S v Birmingham Women's And Children's NHS Trust [2022] EWCOP 10

Application concerning whether a woman has capacity to consent to the termination of her pregnancy.

S is 38 years old, 23 weeks pregnant and, at the time of this hearing, detained under s3 of the MHA as a result of her bipolar affective disorder. However she has a degree in modern languages, a business as a language tutor and generally lives independently. She conceived through IVF in October 2021 but her mental health deteriorated and she was sectioned in January 2022, voicing doubt about the pregnancy (then 19.5 weeks). A best interest meeting concluded that S lacked capacity to consent to termination of her pregnancy, that it would not be in her best interests to have a termination and proposed no further consideration. S then bought these proceedings with a request of an urgent hearing and with no litigation friend.

S’s position was that there was insufficient evidence to rebut the statutory presumption of capacity. HHJ Hilder, after pointing to failings in the assessment process undertaken by the clinicians, agrees and at [58] states:

“Taking into account all the evidence in this matter, all that I have read and heard, I am satisfied that S has amply enough 'pieces of the jigsaw to see the whole picture.' Even if aspects of her weighing are influenced by symptoms of her diagnosed condition, I am not satisfied that S is unable to use or weigh the information relevant to making a decision about termination of her pregnancy. Rather, in my judgment she is demonstrating the application of her own values to the decision in question.”

In a postscript she criticises the health trusts for not bringing proceedings to the court sooner as required by the guidance and by the time pressure of the situation. 

Read the judgment on Bailii