An NHS Trust v D

A court declaration is not routinely required before terminating the pregnancy of an adult who lacks capacity. Where capacity, best interests and compliance with Abortion Act 1967 are clear beyond doubt, medical professionals may proceed. An application should be made where there is doubt about capacity or best interests, disagreement among clinicians, non-compliance with section 1, opposition from the patient or relevant family members, or other exceptional circumstances. Cases near the boundary should be referred to the court. The court’s protective responsibility is strengthened by Article 8 of the Convention, and timely hospital protocols are essential.

The claimant NHS Trust sought a declaration that it could lawfully terminate the pregnancy of an 18-year-old woman suffering from severe schizophrenia and lacking capacity to decide. The declaration was granted in [2002] EWHC (Fam) 3189, after the court found that continuation of the pregnancy posed significantly greater risks than termination.

The parties then invited the court to give wider guidance on whether a declaration was necessary in comparable cases, particularly in light of the Human Rights Act 1998 and developments since Re SG (adult mental patient: abortion). The central issue was when court authorisation is required for termination of the pregnancy of an adult lacking capacity.

1. The court confirmed that treatment of an adult lacking capacity may ordinarily be lawful under the doctrine of necessity where it is in the patient’s best interests. A declaration is not generally required. The statutory safeguards in section 1 of the Abortion Act 1967 are adequate for competent adults, but do not resolve every case involving a patient unable to decide for herself.

2. The court held that termination in accordance with the Act, where required by the patient’s best interests, is a legitimate and proportionate interference with Article 8(1) rights for the protection of health under Article 8(2). Where capacity and best interests are clear and beyond doubt, an application is unnecessary.

3. An application should ordinarily be made where any doubt exists as to capacity or best interests. Relevant circumstances include:

   • a dispute about capacity or a realistic prospect of regained capacity during the pregnancy or shortly afterwards;
   • lack of unanimity among medical professionals about best interests;
   • failure to obtain the certificates required by section 1;
   • opposition or inconsistent views from the patient, her immediate family or the foetus’s father; and
   • other exceptional circumstances, including where the pregnancy may be the patient’s last chance to bear a child.

4. Following the guidance of Thorpe LJ in Re S (adult patient: sterilisation), cases near the boundary should be referred to the court. The court also reiterated the guidance in Re SS (an adult: medical treatment) that hospitals should maintain protocols ensuring early referral and timely resolution.

5. The application was proper because the circumstances initially involved a dispute falling within the identified categories. The President authorised the judge to state that she agreed with the guidance.