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Abortion decisions for the mentally incapacitated – the paradox
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Mary Welstead, Visiting Professor in Family law University of Buckingham
Two decisions in 2024 reveal a paradox about the termination of pregnancies by women declared to be incapacitous under the Mental Health Act 2005, s 2. The court has accepted that s 4(4) of the Act permits such women to make a decision about whether to terminate their pregnancies.
In the first case, Hayden J respected the rights of NR, an incapacitous adult, to decide whether to terminate her pregnancy with the help of her chosen advisors and it would not be lawful and in her best interests for the NHS Trust to make the decision for her.
In the second case, Butler-Cole KC accepted that NN was incapacitous to decide whether to undergo a termination. The clinicians agreed that she should be offered a termination which would only be carried out if NN wished to proceed. NN agreed and the procedure went ahead.
The full article has published in the June issue of Family Law. Find out more or request a free 1-week trial of Family Law journal. Please quote: 100482
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