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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> S v Birmingham Women's And Children's NHS Trust [2022] EWCOP 10 (07 March 2022) URL: https://www.bailii.org/ew/cases/EWCOP/2022/10.html Cite as: [2022] COPLR 345(2022) 185 BMLR 201, [2022] EWCOP 10, (2022) 185 BMLR 201, [2022] COPLR 345 |
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MENTAL CAPACITY
ACT 2005
42-49 High Holborn, London, WC1V 6NP |
||
B e f o r e :
sitting at Tier 3 as a Deputy High Court Judge
____________________
S | Applicant | |
and | ||
(1) BIRMINGHAM WOMEN'S AND CHILDREN'S NHS TRUST | ||
(2) BIRMINGHAM AND SOLIHILL ![]() ![]() |
Respondents |
____________________
Mr. D. Lawson (instructed by Capsticks) appeared on behalf of the Respondents
Hearing: 28th February 2022
____________________
Crown Copyright ©
Her Honour Judge Hilder:
Background
Matters considered
a. an unsigned statement by S;
b. four documents called "capacity
assessment" dated respectively 1st, 9th , 15th and 27th February 2022; and
c. draft minutes of the 'best interests' meeting held on 18th February 2022.
a. Dr. Jancovic, Consultant Perinatal Psychiatrist;
b. Ms Pretlove, Consultant Obstetrician;
c. C, a sister of S; and
d. S.
The evidence
"…Wanting to consider termination of pregnancy. We discussed termination of pregnancy including medical and surgical options and complications such as bleeding, infection and uterine perforation.
Long discussion with [S] summarised: [S] is wanting to consider termination of pregnancy but is unsure. She is concerned about her finances as she is unable to earn whilst an inpatient in a psychiatric unit. She is worried about the emotional pressure of being a single parent and there will be no one to help her. She wants to 'scrap this now and move to [new property] free'. She would like to try and meet someone again and have a relationship and do things 'the conventional way.' She feels she jumped into the IVF without support from her family and that she was unwell with mania when she started the IVF process.
She also stated she wanted to be a mother and have something to love.
[S] discussed that she was not mentally unwell, it was the pressure of the decision to end or continue the pregnancy that was making her feel like this.
She doesn't feel a connection to the baby and described herself as ambivalent towards the baby.
Assessing [S]'scapacity
was complex. She is articulate and plausible.
She is able to understand and retain information. After prompting, she was able to recall the ultrasound scan in fetal medicine on Tuesday 8th February and other information she had been given during pregnancy. [S] appeared to be weighing information by discussing the pros and cons of ending vs. continuing the pregnancy. However, prior to the pregnancy, over a sustained period of time, [S] demonstrated a wish to be pregnant evidenced by attending pre-pregnancy counselling and subsequently sought IVF with sperm donor. The request for a termination of pregnancy appears to be new and impulsive and her desire appears to become (sic) pregnant again but in better circumstances.
She is able to express her views and is very clear she would want a surgical termination of pregnancy and would not want a medical TOP.
Currently I do not believe [S] hascapacity
to make the decision about termination of pregnancy. She is experiencing mania and this has markedly altered her beliefs about the pregnancy. Prior to becoming unwell there was a sustained period where she actively sought pregnancy.
Additionally, [S] is very unsure about whether she should pursue termination of pregnancy. Although these decisions are difficult, I would not usually advocate booking or sending a woman for termination who had this degree of uncertainty.
Lastly, [S] is likely to recover from this manic episode wherein her weighing process may reverts (sic) back to her pre-pregnancy decision making and then she may be devasted to find she has opted for termination of a wanted pregnancy."
"..I attended [the ward] today to have a discussion with [S] about her decision-making process as to whether to continue with pregnancy or not in preparation for Court hearing tomorrow (as Dr Clarke, RC is on leave)
Overall there has been an improvement in [S]'smental
health, and level of agitation and irritability have significantly improved (as compared to the admission), we had a long discussion and she was able to focus on discussing pros and cons with me
She pointed out several times that she was very unhappy about being in hospital on a section of MHA without leave, that she found it very difficult and she feels it had a negative impact on her ability to make a decision about pregnancy
We had a discussion about pros and cons of continuing with pregnancy and [S] made a list in her notebook that we discussed with the most prominent cons being feeling guilty for not providing a baby with a father figure (she has spent significant time on the ward contacting people on co-parenting website trying to find a 'father figure' for the baby), worry of not being able to cope on her own with a baby, implication on lifestyle and finances of being a single parent, potential difficulties of meeting a new partner once she already has a child etc. On the pros side she wants to be a mother (but would prefer to have a child in a relationship) and has also considering (sic) 'whether ending his (baby's) life is worth it', 'it is not his fault.'
I am not an Obstetrician thus I was not able to discuss specific details/risks of termination of pregnancy procedures with [S] (Miss Pretlove has done that assessment on 9th February) but based on my assessment today it is unlikely that [S]'s ability to understand and retain information and communicate decision is affected by hermental
illness.
However in my opinion hermental
illness, on the balance of probabilities is having significant impact on her ability to
weigh
pros and cons of a decision whether to continue with pregnancy or not.
[S] is recovering from relapse of Bipolar affective disorder (she experienced mixed affective episode) and has significant antenatal bonding difficulties and although hermental
health has significantly improved and many of her concerns are rational (about financial impact of having a child as a single parent and impact that having a child has on lifestyle etc) her decision making process seems to be profoundly affected by feelings of guilt, low self-confidence and negative cognitions about herself (feeling that she has failed a baby because she is not providing a father figure for the baby, of being ashamed of conceiving by IVF without a partner, and worry of not being able to cope on her own with a baby. At the same time she is finding it very difficult to consider in this decision-making process potential consequences of termination such as reduced chance of becoming a mother ([S] considers women over 40 years old who do not have children to be failures and still has a strong wish to be a mother but feels reassured that she has 34 frozen eggs and therefore that she will be able to conceive again) or emotional consequences as she feels she has not bonded with a baby and thus she may not have any difficult feelings following termination (she has however named the baby and described feelings of guilt towards the baby as above).
As of today [S] has not decided whether she wants to terminate the pregnancy or not but today is leaning more towards the termination. However [S] told me that she would like reassurance that termination is the right decision in order to proceed (that neither health professionals nor her family have been able to give her)…"
a. Dr. Jancovic gave some advice by e-mail in July 2021 about S ceasing to take Lithium as she embarked on IVF but she first met S in the process of her admission on 31st January 2022;
b. she is not the Responsible Clinician for S but stepped in the day before the court hearing because the RC was unavailable;
c. she spent an hour and 15 minutes with S the day before the hearing and formed the impression that S'smental
health "has improved greatly;"
d. she has general experience with psychiatric patients but acknowledged that this was her first experience of assessingcapacity
to consent to termination of pregnancy: "what I did yesterday was assess [S's]
mental
health and its impact on her decision-making process. The decision as to
capacity
lies with the obstetrician.";
e. she had formed the view that 'guilt, shame, extreme anxiety and panic….part of depressive conditions, associated with a depressive episode' were the driving force behind S's weighing of the pros and cons of termination, but she subsequently agreed with Mr. McKendrick that 'social factors' were a specific driving force of S's decision-making in respect of pregnancy, and moreover that such considerations were 'not irrational';
f. she pointed to S's efforts to find a father figure as indicating a link between S contemplating termination and an underlying motivation of feeling inadequate. When asked if that link indicated incapacity, she answered that it was, in her opinion, very difficult to say: "I'd need an obstetrician to make the ultimate decision, so I focussed on weighing pros and cons. Yesterday on the balance of probabilities she was not able toweigh
because negative cognition affected her."
g. she considered that this is "a difficult professional decision for me" and she agreed that the professional conclusion may be wrong.
a. Ms. Pretlove has completed a 'small number' of formally documentedcapacity
assessments but she regularly assesses
capacity
in her weekly ante-natal clinics for women with
mental
illness;
b. she spent over an hour with S on 9th February;
c. Ms.Pretlove found the conversation 'difficult' – S was often wanting to ask about leave (over which Ms Pretlove has no authority), and sought Ms. Pretlove's opinion about what she (S) should do about the pregnancy;
d. they discussed the surgical and medical methods of termination. S did not want to hear the explanation of the medical procedure;
e. she assessed the risks of surgical termination as a small ('less than 5% or even 1%') risk of a catastrophic outcome;
f. she was concerned about S's ability touse
and
weigh
information, because this had changed with the deterioration in her
mental
health – for a long period before she was unwell S had actively sought pregnancy;
g. she was concerned that S was 'unsure' about termination, and was clear that she personally would not arrange a termination for any woman who was only 75% sure she wanted it (by 'sure' Ms. Pretlove meant having a 'confirmed, settled belief that this is the action they want to take even if it is difficult/upsetting/they are concerned about what people may think');
h. she considered that a decision to undergo termination of a pregnancy which was conceived by IVF would be 'very unusual' (although she acknowledged that this did not of itself make it incapacitous);
i. she considered S's hope that her social circumstances would change significantly for the better so as to permit later pregnancy within S's preferred terms to be 'quite unrealistic';
j. she set out her 'big concern' that S's bipolar disorder is treatable – she will get better – her original system of wanting pregnancy/IVF will return – she'll be devastated to understand that whilst unwell she had chosen to terminate a pregnancy;
k. she has not seen S since 9th February and so felt unable to agree or disagree with Dr. Jancevic's observation that S'smental
health has significantly improved since then;
l. when asked if she considered that the psychiatrists (as opposed to an obstetrician) were best placed to assess S'scapacity
to make the decision in question, she answered "yes";
m. she 'remains concerned about [S]'s ability toweigh
, and how different it is to her pre-morbid stance' and 'was trying to elicit the point that
capacity
is linked to
mental
health status. Her continued detention is a marker of how unwell she remains';
n. she had discussed with S the 'pathological' considerations of termination (risks of heavy bleeding/injury to cervix, uterus or adjacent organs/ subsequent need for hysterectomy and risks related to anaesthesia) but had not discussed with her the possible involvement of social services if the pregnancy continued to live birth.
Law and Procedure
1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two medical practitioners are of the opinion, formed in good faith –
(a) That the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical ormental
health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical ormental
health of the pregnant woman;
or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical ormental
abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection 1 of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
…..
a. A person must be assumed to havecapacity
unless it is established that she lacks
capacity
.
b. A person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success.
c. A person is not to be treated as unable to make a decision merely because she makes an unwise decision.
d. An act done, or decision made, under this Act for or on behalf of a person who lackscapacity
must be done, or made, in her best interests.
e. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedoms of action.
2 People who lackcapacity
2(1) For the purposes of this Act, a person lackscapacity
in relation to a matter if at the material time she is unable to make a decision for herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter if whether the impairment or disturbance is permanent or temporary.
(3) A lack ofcapacity
cannot be established merely by reference to –
a) a person's age or appearance, or
b) a condition of hers, or an aspect of her behaviour, which might lead others to make unjustified assumptions about hercapacity
.
(4) In proceedings under this Act or any other enactment, any question whether a person lackscapacity
within the meaning of this Act must be decided on the balance of probabilities.
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for herself if she is unable
a) to understand the information relevant to the decision,
b) to retain that information,
c) touse
or
weigh
that information as part of the process of making the decision, or
d) to communicate her decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if she is able to understand an explanation of it given to her in a way that is appropriate to her circumstances (using simple language, visual aids, or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only dies not prevent her from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of –
a) deciding one way or another, or
b) failing to make the decision.
"[35] The determination ofcapacity
under MCA 2005 Part 1 is decision specific…all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished."
and
"[54] there is a space between an unwise decision and one which an individual does not have themental capacity
to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates."
"12. Intrinsic to assessing capacitous decision taking is the ability toweigh
and sift the relevant information. In PCT v. P [2011] 1 FLR 287, AH and The Local Authority [2009] COPLR Con Vol 956 at [35] Hedley J, with characteristic conciseness, analysed the
capacity
to
use
or
weigh
information thus:
"thecapacity
actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate one to another."
13. It is not necessary for a person touse
or
weigh
every detail of the respective options available to them to demonstrate
capacity
, the salient features are key: see CC v. KK and STCC [2012] EWHC 2136 (COP) at [69]. Importantly, it must always be recognised that though a person may be unable to
use
or
weigh
some of the information objectively relevant to the decision in question, they may nonetheless be able to
use
or
weigh
other elements sufficiently well so as, ultimately, to be able to make a capacitous decision, see: Re SB [2013] EWHC 1417 (COP). It is not necessary to have every piece of the jigsaw to see the overall picture.
14. Even when an individual fails to give appropriate weight to features of a decision that professionals might consider to be determinative, this will not in itself justify a conclusion that P lackscapacity
. Smoking, for example, is demonstrably injurious to health and potentially a risk to life. Objectively, these facts would logically indicate that nobody should smoke. Nonetheless, many still do. In Kings College NHS Foundation Trust v. C and V [2015] EWCOP at [38] MacDonald J stated:
"It is important to note that s3(1)(c) is engaged where a person is unable touse
and
weigh
the relevant information as part of the process of making the decision. What is required is that the person is able to employ the relevant information in the decision-making process and determine what weight to give it relative to other information required to make the decision. Where a court is satisfied that a person is able to
use
and
weigh
the relevant information, the weight to be attached to that information in the decision-making process is a matter for the decision maker. Thus, where a person is able to
use
or
weigh
the relevant information but chooses to give that information no weight when reaching the decision in question, the element of the functional test comprised by s3(1)(c) will not be satisfied. Within this context, a person cannot be considered to be unable to
use
and
weigh
information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision-making process."
a. the Court was obliged to make a decision under great time pressure. (paragraph 23)
b. the reason for the proceedings was that the pregnant mother herself was requesting termination, so the issue wascapacity
. The judge was at pains to point out that the case had nothing whatsoever to do with a quite different issue which sometimes arises of termination without the actual consent of the pregnant woman: "..if a termination does take place, it will only take place because she personally has strongly requested it and consents to it right up to the moment when the procedure begins." (paragraph 5)
c. the procedure could only take place if doctors, in the exercise of their own professional judgment, voluntarily decide to perform the abortion that the mother is requesting. (paragraph 6) A doctor who was willing to perform the termination attended the hearing. (paragraph 23)
d. any power or right of the Court to trespass into consideration of the pregnant woman's best interests arises only if the Court has first determined that she herself lackscapacity
in relation to the decision and subject matter in question. (paragraph 11)
e. the case could not be more fact specific. No precedent or indication of general proposition of law or statutory construction is intended. (paragraph 12)
f. SB had a diagnosis of bipolar disorder, characterised over years by periods of stability, relapse and remission. The pregnancy was initially positively wanted. For the first trimester, SB meticulously attended antenatal scans and appointments. Her attitude towards the pregnancy changed only in the fourth month of pregnancy. (paragraphs 20 & 21)
g. SB had a strong view about the abortion procedure she sought, seeking induced labour by medication. She had failed to attend an appointment for surgical abortion. (paragraph 22)
h. SB maintained her wish to have an abortion in the circumstances ofMental
Health Act detention.
i. SB's treating clinicians considered that the pregnant woman lackedcapacity
to make her own decision to undergo a termination. Their evidence was that the reason she lacked
capacity
was that SB had current persecutory or paranoid beliefs as a result of the bi-polar illness. (paragraph 24 and 32)
j. the proceedings were issued by the hospital in which the pregnant woman was detained. (paragraph 25)
k. the Official Solicitor had initially been invited to act as Litigation Friend for the pregnant woman but she had already instructed solicitors herself. The OS instructed that solicitor. The OS obtained an urgent assessment by an independent psychiatrist (Dr. Smith), who concluded that the pregnant woman hadcapacity
to conduct the proceedings. Only after that did the pregnant woman attend the hearing, having already expressed a strong desire to do so. She gave oral evidence. The judge granted an application to discharge the appointment of the Official Solicitor as Litigation Friend. (paragraphs 28, 29 & 30)
l. The independent psychiatrist concurred with her treating clinicians that SB lacked subjectcapacity
(even though she had litigation
capacity
). Dr Smith was in no doubt that SB understood:
i. 'what is involved in the termination'
ii. 'the procedure and what would be involved'
iii. 'the finality of the event'
iv. 'any risks to her from undergoing a termination.
Dr Smith considered that SB lackedcapacity
because 'there has been this marked change of attitude between her apparent pleasure at being pregnant in the early stages of pregnancy, and her more recent desire to seek termination… there is a strong temporal relationship between the patient stopping medication, developing paranoid ideas about her husband or mother and deciding to opt for a termination of her pregnancy.' (paragraphs 34 & 35)
m. The judge accepted the medical evidence 'insofar as it is evidence within their professional domain', specifically the diagnosis. However he restated that overall assessment ofcapacity
is a matter for the court, and he disagreed with the psychiatrists as to 'the level of the bar as to
capacity
.' (paragraphs 37 & 38)
n. What weighed most significantly was that, even if SB had paranoid or delusional views, she gave many other reasons for desiring a termination. Those reasons included unhappiness in her situation of detention, rejection of adoption as a resolution ("why should I have a child just to give it up?") and worry about her ability to bring up a child. (paragraphs 42 & 43)
o. Without concluding that SB's reasons were "good" reasons, or any agreement with her decision, the judge reminded himself a person is not to be treated as unable to make a decision because it is an unwise decision, and concluded that "it would be a total affront to the autonomy of this patient to conclude that she lackscapacity
to the level required to make this decision." (paragraph 44)
"6. If the provisions of theMental Capacity
Act 2005 are followed, any relevant professional guidance observed and relevant guidance in the Code of Practice followed, including as to the undertaking of the decision-making process, then, if there is agreement at the end of the decision-making process as to:
(a) the decision-makingcapacity
of; and
(b) best interests of the person in question,
then in principle, medical treatment may be provided to, withdrawn from or withheld in accordance with the agreement, without application to the court, in reliance upon the defence in section 5" [of theMental Capacity
Act 2005]
"8. If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:
(a) finely balanced, or
(b) there is a difference of medical opinion, or
(c) a lack of agreement as to a proposed course of action from those with an interest in the person's welfare, or
(d) there is a potential conflict of interest on the part of those involved in the decision-making process.
(not an exhaustive list)
Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court is required.
9. ….
10. In any case which is not about the provision of life-sustaining treatment, but involves the serious interference with the person's rights under the ECHR, it is 'highly probable that, in most, if not all, cases professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of [capacity
and] best interests, with [the person] having the benefit of legal representation and expert independent advice.' This will be so even where there is agreement between all those with an interest in the person's welfare."
Positions of the parties
a. there has been no clear identification of the information relevant to the decision;
b. clinicians have been in contact with social services with regard to prospective steps should there be a live birth, but no discussion at all of this with S;
c. it is not clear what practical steps, if any, have been taken to assist S to havecapacity
to make this decision;
d. a conclusion ofcapacity
requires that S is unable to make it because of the bipolar disorder, not because she struggles in her current situation to be sure of what is a very grave decision;
e. such evidence as there is that bipolar disorder causes S to be unable touse
and
weigh
information, rather than social factors identified by S being the basis of a capacitous decision by her, is insufficient to displace the statutory presumption.
a. the physical risks to S in the termination procedure (in particular, in respect of a surgical procedure, a very small risk of a catastrophic harm);
b. the risk of harm to S'smental
health, both in having a termination and in continuing the pregnancy in the circumstances which exist;
c. the risk of harm of safeguarding measures in the event of a live birth, including potentially the mother and baby unit.
a. what he says S is unable touse
and
weigh
, with
b. the overall decision being "a huge change of position" linked in time to her relapsingmental
health, and
c. the steps S has taken to fill the gap which she perceives,
S's inability to make the decision in question is clear.
Discussion
a. what the termination procedures involve for S ('what it is');
b. the effect of the termination procedure / the finality of the event ('what it does');
c. the risks to S's physical andmental
health in undergoing the termination procedure ('what it risks');
d. the possibility of safeguarding measures in the event of a live birth.
A post script on the proceedings
HHJ Hilder
7th March 2022