Strand, London, WC2A 2LL
B e f o r e :
AN NHS Trust
- and -
D (By her litigation friend The Official Solicitor)
| AN NHS Trust
|- and -
|D (By her litigation friend The Official Solicitor)
Huw Lloyd (instructed by Malcolm C Foy & Co) for the Defendant
Hearing dates : 8.11.02
Crown Copyright ©
Mr Justice Coleridge:
The Abortion Act 1967
(a) that the continuance of the pregnancy would involve risk to the pregnant woman's life, or of injury to her physical or mental health or to that of any existing children, outweighing the risks of terminating the pregnancy; or
(b) that there is a substantial risk that the child if born would suffer from a physical or mental abnormality such as to be seriously handicapped.
Treatment of Mentally Incapacitated Adults
"The application of the principle which I have described means that the lawfulness of a doctor operating on, or giving other treatment to, an adult patient disabled from giving consent, will depend not on any approval or sanction of a court, but on the question whether the operation or other treatment is in the best interests of the patient concerned. That is, from a practical point of view, just as well, for, if every operation to be performed, or other treatment to be given, required the approval or sanction of the court, the whole process of medical care for such patients would grind to a halt."
"That question is whether, in the case of an operation for the sterilisation of an adult woman of child-bearing age, who is mentally disabled from giving or refusing her consent to it, although involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice. In considering that question, it is necessary to have regard to the special features of such an operation. These features are: first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims."
"Having regard to all these matters, I am clearly of the opinion that, although in the case of an operation of the kind under discussion involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice. There may be cases of other special operations to which similar considerations would apply. I think it best, however, to leave such other cases to be examined as and when they arise."
The Existing Law in Respect of Terminations
regulated by statute which provided "fully adequate safeguards for doctors who are to undertake this treatment" (at 331). It was therefore not necessary to seek the specific approval of the High Court before the termination of a pregnancy, provided the conditions of s.1 of the Abortion Act 1967 were complied with.
"No doubt the particular situation arising in cases of the termination of pregnancy will be considered in the Law Commission's current investigation, and it may be that further guidelines will be issued by the Medical Ethics Committee of the British Medical Association, in addition to recommendations which may be made by the Law Commission. For the time being, however, I express my view that a formal declaration is not required in this case."
"Health professionals approached by a pregnant woman lacking the capacity to give a valid consent must use their professional judgment to assess the patient's best interests." (See http://www.bma.org.uk/ap.nsf/Content/abortion)
"Pregnant patients in psychiatric hospital are not unusual. The issue of the termination of pregnancies in such circumstances must arise frequently. It seems to me essential that each hospital should have a protocol to deal with possible terminations of such pregnancies, and that these protocols should be designed to address the issue in good time so that, wherever practicable and in the interests of the patient, a termination can be carried out at the earliest opportunity. Furthermore, any such protocol should ensure that the patient is referred at an early stage to independent legal advice, whether from the Official Solicitor or the solicitor who, as in this case, appears to have represented her at the Mental Health Review Tribunal."
The development of the declaratory jurisdiction in respect of incompetent adults
"Sir Stephen Brown P's test was necessarily expressed in broad terms. Anything so stated offers a margin to whoever interprets and applies it. In my opinion any interpretation and application should incline towards the strict and avoid the liberal. The courts are not overburdened with applications in this field. Indeed they are rare. In view of the importance of the subject, if a particular case lies anywhere near the boundary line it should be referred to the court by way of application for a declaration of lawfulness."
"[I]n cases of controversy and cases involving momentous and irrevocable decisions, the courts have treated as justiciable any genuine question as to what the best interests of a patient require or justify. In making these decisions the courts have recognised the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable; they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; and they have recognised the desirability, in the last resort, of decisions being made by an impartial, independent tribunal."
(i) where the pregnancy would be likely to be the patient's last chance to bear a child;
(ii) where members of either the patient's family or healthcare team do not agree with the proposed termination;
(iii) where the doctors are uncertain as to whether a termination sought by a patient would be in her best interests;
(iv) where the patient is likely to gain her capacity and/or has whilst capable expressed a desire not to have a termination;
(v) where there is some concern over the Abortion Act certificate; or
(vi) where there are any other special features which lead the Trust to consider that an application is necessary.
(a) where there is no issue as to capacity, and no realistic possibility that the patient will regain capacity in time to decide for herself;
(b) there is no issue as to the best interests of the patient;
(c) the Abortion Act certificate has been issued;
(d) the termination is not opposed by either the patient or her family members or the father of the unborn child; and
(e) there were no other exceptional circumstances.
(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 (ie, 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).