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Report No. 196

(27) NHS Trust vs D,2003 EWHC 2793 (Coleridge J.) (pregnancy case)

The defendant was a young adult lady suffering from severe schizophrenia. She was 18 and became pregnant. She was not capable of making a decision. Her doctors advised termination of pregnancy. An application by the claimant-hospital was allowed permitting termination as the procedure under the Abortion Act, 1967, namely, certificates of two doctors were there and conditions mentioned in Section 1 of that Act were satisfied. Declaration was granted. (2002 EWHC (Fam) 3184 referred)

It was stated that, however, after the coming into force of Human Rights Act, 1998, questions arose as to whether Section 1 of the Abortion Act, 1361967 could be applied to mentally incompetent patients, or whether other procedures were necessary.

Coleridge J referred to the decision of Sir Stephen Brown P in Re SG (adult mental patient: abortion): 1991 (2) FLR 329 (already referred to) and stated that procedures under Abortion Act, 1967 of obtaining opinion of two doctors is sufficient even in the case of a pregnant woman who is not having mental capacity. He referred to the caution that has to be taken while accepting the judgment of the doctors, as stated by the Court of Appeal in Re S (adult patient: sterilization) (2001 Fam 15)(CA), and clarified the position between normal cases arising under that Act where the woman has capacity to take a decision and other cases where the woman is not competent. Coleridge J stated as follows:

"The safeguards provided by the Abortion Act 1967 provide comprehensive and adequate protection for competent adults who have made their own decision to terminate a pregnancy. A mentally incapacitated woman, however, does not have the opportunity to weigh all the factors and make a decision for herself. If the guidance in Re SG were to be strictly applied, it would leave responsibility for all such decisions for mentally incapacitated women, regardless of circumstances, with their medical professionals. This cannot be correct in all circumstances.

The advent of the Human Rights Act, 1998 has enhanced the responsibility of the Court to protect positively the welfare of these patients, and in particular to protect the patient's right to respect for her private and family life under Article 8(1) of the European Convention on Human Rights."

Even so, in pregnancy cases, "where the issues of capacity and best interests are clear and beyond doubt, an application to the Court is not necessary."

But, "where there is any doubt as to either capacity or best interests, an application to the Court should be made. In particular and without limiting the generality of that proposition, the following circumstances would ordinarily warrant the making of an application:

(i) where there is a dispute as to capacity, or where there is a realistic prospect that the patient will regain capacity, following a response to treatment, within the period of her pregnancy or shortly thereafter;

(ii) where there is a lack of unanimity amongst the medical professionals as to the best interests of the patient;

(iii) where the procedures under Section 1 of the Abortion Act, 1967 have not been followed (i.e. where two medical practitioners have not provided a certificate);

(iv) where the patient, members of her immediate family or the foetus' father have opposed or expressed views inconsistent with a termination of the pregnancy; or

(v) where there are other exceptional circumstances (including where the termination may be the patient's last chance to bear a child)"

Even if a case is filed anywhere near the boundary line of any one of the above criteria, it should be referred to the Court, to avoid doubts, as stated by Thorpe LJ in Re S (adult patient sterlisation) 2001 Fam 15. Further, as stated by Wall J in Re SS: 2002 (1) FCR 73, the importance of making necessary applications in good time cannot be overstated. It is imperative that the medical profession ensures that adequate protocols are put in place for the timely resolution of these issues.



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