AB (Termination of Pregnancy), Re

When a pregnant woman lacks capacity, doctors must first determine whether the Abortion Act 1967 permits termination. The Court of Protection must then decide separately whether providing consent is in her best interests. Satisfaction of the ordinary health-risk criterion does not require grave permanent injury. The court must evaluate all relevant circumstances, including wishes and feelings, evidenced beliefs and values, and the views of carers and others who know the woman. A non-consensual termination is a profound Article 8 interference and requires clear evidence; a finely balanced uncertainty is insufficient. Wishes and feelings must receive real weight, even where they are unclear or non-capacious. Appellate intervention is justified for a material error in that evaluative exercise.

AB, a 24-year-old woman with moderate learning disabilities, lacked capacity to consent to termination of her pregnancy. The NHS Foundation Trust providing her antenatal care applied to the Court of Protection after her adoptive mother, CD, opposed termination. At the hearing AB was more than 22 weeks pregnant. Mrs Justice Lieven authorised termination as being in AB’s best interests: [2019] EWCOP 26. CD, supported by the Official Solicitor, appealed. The appeal concerned the weight to be given to the medical evidence, AB’s wishes and feelings, the views of those who knew her best, and the anticipated consequences of continuing the pregnancy. The central issue was whether the first-instance best-interests evaluation justified authorising a highly invasive, non-consensual termination.

Appeal allowed unanimously. Permission to appeal was granted and the declarations authorising termination were set aside.

1. The statutory roles were distinct. The doctors had determined in good faith that the conditions in section 1(1)(a) of the Abortion Act 1967 were met. The court’s task was then to decide whether supplying the consent of the woman lacking capacity was in her best interests. Those questions could overlap but were not identical.
2. The observations in Re X (A Child) [2014] EWHC 1871 concerning the exceptional nature of compelling a woman who wished to continue her pregnancy were fact-specific. They did not establish a rule that termination could be authorised only where section 1(1)(b) was satisfied. The court nevertheless had to recognise that non-consensual termination was a profound invasion of Article 8 rights and required clear and cogent evidence. The interests of the foetus were not relevant; the court was concerned with the mother’s interests.
3. The Mental Capacity Act 2005 required a comprehensive best-interests assessment. AB’s inability to care for a child and the likely removal of the child could properly be considered. The judge was entitled to find that AB would probably be unable to care for the child. She was not entitled, on the evidence, to assume that the child would be placed with CD and that AB would consequently lose both her child and her home.
4. AB’s wishes and feelings were relevant and could be determinative, even though she lacked capacity. They were entitled to less weight because AB had little understanding of the consequences, but they could not be disregarded. Her feelings remained uniquely her own and had to be considered alongside her wishes. The judge also failed to weigh the views of CD and AB’s social worker, both of whom knew AB particularly well, against the medical evidence. The Official Solicitor’s position was likewise material.
5. The appellate court could interfere with an evaluative order where there was an error of principle or a plainly wrong conclusion. The judge had given inadequate weight to important non-medical factors, while the medical evidence depended substantially on imponderable predictions about two traumatic outcomes. The evidence as a whole did not convincingly justify the profound intervention proposed. The termination therefore would not take place, and AB would continue the pregnancy.

Applications for such declarations should be treated as matters of the utmost urgency, particularly where a late termination may expose an incapacitated woman to an unnecessarily invasive procedure.

1. Court of Appeal (Civil Division): Permission granted and appeal allowed; the declarations authorising termination were set aside. [2019] EWCA Civ 1215.
2. Court of Protection: Mrs Justice Lieven declared that termination would be lawful and in AB’s best interests. [2019] EWCOP 26.