(Court of Protection, Baker J, 22 January 2016)The Court of Protection authorised the termination of the young woman’s pregnancy on the basis that she lacked capacity to decide and that it was in her best interests.
Neutral Citation Number:  EWCOP 10
Case No. COP12807637
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF CS (TERMINATION OF PREGNANCY)
Royal Courts of Justice
Date: Friday, 22nd January 2016
MR. JUSTICE BAKER
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B E T W E E N:
AN NHS TRUST
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(BY HER LITIGTION FRIEND, THE OFFICIAL SOLICIROR)
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VIKRAM SACHDEVA QC and VICTORIA BUTLER-COLE (instructed by Kennedys) appeared on behalf of the Applicant Trust.
CONRAD HALLIN (instructed by the Official Solicitor) appeared on behalf of Respondent.
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J U D G M E N T
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the Respondent and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
MR. JUSTICE BAKER:
This is an application by a Hospital Trust for orders in respect of a young woman, who I will refer to as CS, who is said to lack capacity and in respect of whom the Trust seeks an order that it would be in her best interests to undergo surgery terminating her current pregnancy. This hearing is being conducted in the Court of Protection in open court in accordance with the Rules but subject to a reporting restriction order which I made earlier this afternoon.
The facts can be summarised very briefly. CS has two children already. She was, until shortly before Christmas, in a relationship with the father of her younger child. It is alleged that the relationship gradually became characterised by domestic violence perpetrated on her by her partner. In early December 2015, CS discovered that she was pregnant by her partner. Thereafter, she told a number of people, including her sister (who has given evidence before me today) that she did not intend to keep the baby, that she did not want to have another baby by her current partner in her current circumstances, that she wanted to have an abortion and wanted her sister to accompany her to the clinic. It is important to note that some years earlier CS underwent a termination and on that occasion her sister had also accompanied her to the clinic.
A day or so after this conversation with her sister, CS was allegedly violently assaulted by her partner, as a result of which she sustained serious injuries, including serious head injuries, comprising fractures, intracranial bleeding and brain damage. Her partner has been arrested and is at present remanded in custody. As it is likely that there will be criminal proceedings, I propose to say little more about the alleged attack or the injuries. Suffice it to say that CS was admitted to hospital, run by the applicant Trust, and received emergency treatment over an extensive period and currently remains in that hospital receiving care and treatment. Her injuries continue to give rise to serious concern and the prognosis is at present far from clear. 
The medical evidence, which I have seen today, from her consultant neurosurgeon, the consultant in rehabilitative medicine responsible for treating her, a consultant psychiatrist and a consultant obstetrician, demonstrates that the injuries have had a profound effect on her. She has become agitated, restless, disruptive and extremely unsettled in her behaviour. This is said to be inconsistent with the anticipated pattern of recovery following injuries of the sort that she has sustained and is a cause for growing concern. At present, the doctors are finding it difficult to explain exactly why things have taken this course. She is wandering, occasionally assaulting staff in hospital and falling. Her latest fall earlier this week led to a further head injury which necessitated another CT scan. No further injury was detected on that scan as a result of the fall but sadly the scan showed no evidence of recovery. The rehabilitative medical consultant advises that she is unable to lay down any new memories at present, that is to say that she is suffering from post-traumatic amnesia and it is difficult to predict when she will emerge from this condition. It is proposed that she should shortly be transferred to a specialist rehabilitative unit equipped to manage patients with this condition and who demonstrate this type of behaviour. It is predicted that she will emerge from this but it is not clear when this will happen. At present, however, she has no insight into her condition.
The urgency of the situation now arises because the time during which a surgical termination of pregnancy can be carried out is limited; it will in fact expire next week. Thereafter, under current medical guidelines, it will still be possible for a termination of the pregnancy to be achieved medically but for that method to be used her cooperation would be required and that cannot be guaranteed. Therefore, the Trust makes this application to the court. That application was filed this week. It came before me earlier this week at a hearing at which I gave a number of directions, including an invitation to the Official Solicitor to represent CS under directions for medical reports and statements. The matter came back before me this afternoon for a full hearing and I had before me the evidence of written reports from those specialists previously identified, statements from a number of relatives and friends of CS and oral evidence briefly from her mother and sister. They painted a moving picture of a family that has rallied round to support CS in this crisis, caring for her two young children and generally being at her bedside whenever possible. I have nothing but admiration for the dedication that the family has shown to CS and her children at this very difficult time.
There are two issues which I have to determine – first, does CS lack capacity and secondly, if so, what order should be made in her best interests? 
On the first question, that of capacity, the law is as follows. Section 1 of the Mental Capacity Act 2005 provides, insofar as relevant:
“(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
Section 2 of the Act provides, insofar as relevant, as follows:
“(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.”
Section 3 provides, insofar as relevant,
“(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).”
Section 4(3) of the Act, in the provisions as to best interest to which I shall turn later, provides that a decision-maker deciding what should be done in the best interests, “must consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that he will, when that is likely to be.”
The central principles relating to capacity have been summarised by me in an earlier case, CC v KK  EWHC 2136 (COP) at paras. 18 to 25:
“18. First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).
19. Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the ‘diagnostic test’, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the ‘functional test’, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in Chapter 4 of the Mental Capacity Act 2005 Code of Practice.
20. Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.
21. Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s.1(3). The Code of Practice stresses that ‘it is important not to assess someone's understanding before they have been given relevant information about a decision’ (para 4.16). Relevant information is said in paragraph 4.19 to include ‘what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all’. Paragraph 4.46 of the Code of Practice adds that ‘it is important to assess people when they are in the best state to make the decision, if possible’.
22. Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ  EWHC 2664 (Fam) (at para.24), that ‘it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail …’ At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can ‘comprehend and weigh the salient details relevant to the decision to be made’. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: ‘…it is recognised that different individuals may give different weight to different factors’.
23. Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: ‘It is important to acknowledge the difference between unwise decisions … and decisions based on a lack of understanding of risks or inability to weigh up the information about a decision. Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else’.
24. Finally, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L  EWHC 144 (Fam)  1 FLR 851 at paras 39 and 44, Charles J observed ‘it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision’. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.
25. There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R  EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW  EWHC136 (Fam)  2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the ‘child protection imperative’, meaning ‘the need to protect a vulnerable child’ that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.”
In addition, I have in mind the observations and decision of the Court of Appeal in PC v City of York Council  EWCH Civ 478 to the effect that the court must be satisfied that there is a sufficient causal relationship between the mental impairment identified pursuant to s.2 and the inability of the individual to make the decision in question. I also have in mind the provisions of the Mental Capacity Act Code of Practice at para.3.14 that, if the person’s capacity is likely to improve in the foreseeable future, those who are making a decision should wait until it has done so if that course is practical and appropriate. As in any other situation a person’s capacity to make a particular decision must only be examined when it needs to be made. Where appropriate and possible, one should always to see if the patient’s capacity is restored. 
On behalf of the Trust, Mr. Sachdeva QC and Ms Butler-Cole submit that the court has sufficient evidence upon which to make a final declaration that CS lacks capacity to decide whether to undergo the termination of her pregnancy. She is unable to retain information due to her post-traumatic amnesia and frequently unable to provide or communicate coherent answers to even simple questions. She is unable to understand or retain relevant information, including the options for termination, the extent of her pregnancy, her previous views about pregnancy, her personal circumstances and ability to care for her existing children. It is, submits Mr. Sachdeva, unlikely that she will regain capacity within the next few weeks before the deadline for a surgical termination is reached. The Official Solicitor agrees with this analysis. The diagnostic test is plainly satisfied. As for the functional test, the evidence of the psychiatrist is that she appears to find it difficult to understand and retain information generally, including as to the issue in question. Thus, for example, she thought wrongly that she had been pregnant for only seven weeks when the psychiatrist spoke to her recently. The psychiatrist advises that she would not be able to take account of her memory and cognitive problems when seeking to balance relevant information. She is unable to concentrate for more than a very short period of time. 
Her capacity may be regained. Indeed, it is anticipated that there is a reasonable prospect that there could be a regaining of capacity, but it seems plain that that is not going to happen in the short term and certainly – or almost certainly – not in the timescale of the making of the decision in question. Sadly for her the prognosis is far from clear. The prospects of an effective termination may be lost if the decision is not taken now. The position is, submits Mr. Hallin on behalf of the Official Solicitor, therefore an urgent one.
I am satisfied, having regard to all the evidence, that CS does lack capacity to make the decision in question. 
I therefore turn to the second question - what order should be made in her best interests? On this point, I take account of s.4 of the Act. In addition to sub-section (3) to which I have already referred, under sub-section (4) it is provided that I “must, so far as reasonably practicable, permit and encourage the person to participate or to improve her ability to participate as fully as possible in any act done for her and any decision affecting her.” Subsection (6) provides that I must “consider so far as reasonably ascertainable (a) the person’s past and present wishes and feelings and in particular any relevant written statement made by her when she had capacity; (b) the beliefs and values that would be likely to influence her decision if she had capacity; and (c) the other factors that she would be likely to consider if she were able to do so.” Under sub-section (7) I must take into account insofar as it is practicable and appropriate to do so, the views of anyone engaged in caring for her or interested in her welfare as to what would be in her best interests and in particular as to the matters mentioned in sub-section (6). 
To that end I have regard to what is said by her friends and in particular her mother and sister in their statements and oral evidence to which I have referred. I also record that I have arranged for notice of this application to be served upon her former partner, currently remanded in custody. Although case law establishes that he would not have the right to seek an injunction to prevent any termination, nonetheless it seemed to me appropriate in all the circumstances for him to be served with notice of this application. That was duly done two days ago and he has not responded to that notice. 
I have regard to the relevant case law in determining best interests and in particular to the observations of Baroness Hale in Aintree University Hospitals NHS Trust v James  AC 591. As she observed in that case at para.39,
“The most that can be said therefore is that in considering the best interests of this particular patient at this particular time decision-makers must look at his welfare in the wider sense, not just medical but social and psychological. They must consider what the outcome of that treatment for the patient is likely to be. They must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be and they must consult others who are looking after him or who are interested in his welfare, in particular for their view of what his attitude would be.” 
I also bear in mind the recent observations of Peter Jackson J. in Wye Valley NHS v B  EWCOP 60, in particular at para. 10 in respect of the weight to be accorded to the wishes of a person without capacity,
“Once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others very significant weight will be due.”
In this context, I also have regard to the observations of Sir James Munby P. in the case of Re X  EWHC 1871 Fam, a case which involved a decision on the termination of a pregnancy of a 13-year-old girl, different therefore in some respects but not in others to the facts of the present case. In that judgment the President made this observation at para.10,
“A child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination.” 
In this case I have very clear evidence that CS expressed an intention on a number of occasions prior to the injury that she wanted to terminate her pregnancy. She had begun to take steps towards making an appointment and had acted in a way which was entirely compatible with that being her intention. I have statements of four friends, who it is unnecessary to identify, before me concerning conversations to that effect and in addition the evidence of her mother and sister on that point. In my view the evidence is overwhelming and all one way. CS was consistently expressing her wish to have a termination of pregnancy prior to the injury shortly before Christmas. It is the evidence of her mother and sister that were she able to make a capacitated decision now it would still be her clear wish to have a termination based on her previous wishes. 
In considering this evidence, I bear in mind what I regard as the important fact that CS has previously had a termination of a pregnancy and therefore has the experience of both the physical and also the emotional consequences of the procedure. In expressing her clear views as she did prior to the injury, she was acting knowing of the consequences of having a termination, of what is involved physically, emotionally and psychologically. It is very difficult to ascertain her present wishes. Insofar as she says anything coherent on the topic it has been, on occasions, supportive of her previous position. In a hesitant and inarticulate way, she has confirmed to her mother that she did not want to keep the baby. At other times, however, she has expressed contrary views, indicating that she wanted to keep the baby, but those views have not been clear and have been on every occasion subsequently contradicted.
The Official Solicitor’s representative visited CS earlier this week. When she spoke to her about these proceedings and asked her what she wanted she told the Official Solicitor’s representative that she wanted to keep the baby. However, it was suggested by her mother – and in my view highly likely – that when she said that CS was referring not to the baby she was carrying but rather to her 12-month old child. In those circumstances I do not consider that that particular view is one to which I should attach any particular weight. Overall it was the view of the Official Solicitor’s representative that her presentation and responses demonstrated that she did not have capacity to make decisions or instruct a solicitor in respect of those matters.
I have thought carefully about the fluctuating wishes that she has apparently expressed since the injury and taken those statements into account up to a point. However, it seems to me impossible for this court to attach any significant weight to them bearing in mind her patent lack of capacity, the manifest difficulties she has in understanding, retaining and weighing up information concerning the pregnancy. Overall, I consider that the clear and unambiguous views that she expressed prior to the injury are the crucial factors in this case. A termination also accords with her best interests in other ways. It is plain that continuing her pregnancy will involve a greater risk of injury to her physical health. In saying that, I have regard to the opinion expressed by her consultant obstetrician that if she continues with the pregnancy it is more likely than not that as she becomes larger she will become more prone to falls and cause herself significant injury, particularly if she continues to exhibit the type of behaviour that she has been demonstrating in the last few weeks. It is therefore in my judgment likely that termination will promote her physical recovery and rehabilitation. I also, of course, have to take into account the medical risks of termination but they are, on the evidence, relatively low. They are of course risks that she has taken previously in respect of her earlier termination. The obstetrician supports the termination of the pregnancy within the criteria of the Abortion Act 1967 on the basis that continuing the pregnancy would involve a greater risk of injury to her physical health than if it was terminated. 
In all the circumstances, therefore, I am quite satisfied that CS’s best interests lie in authorising the termination of her pregnancy by surgery. This accords with her clear wishes prior to the injury and also with her overall health and welfare. 
I will therefore make an order in the following terms. I declare that she lacks capacity to consent to medical treatment, in particular to the termination of the pregnancy, coupled with a general anaesthetic and ancillary treatment. I will order and further declare that it is lawful and in her best interests to undergo termination of the pregnancy by surgical means and in the course of that process to undergo general anaesthetic and ancillary treatment. 
The Official Solicitor pointed out in the course of the hearing that there is as yet no clarity as to the processes that will be put in place to administer anaesthetic, in particular if she becomes distressed and agitated so that some form of restraint is necessary. I therefore direct that the Trust should file and serve on the Official Solicitor a further short plan setting out how those eventualities would be met. Because it is conceivable that it will be necessary for restraint to be used in the course of the procedure, I declare that it will be lawful for the Trust to use proportionate force for that purpose. 
Finally, I make the necessary order for the applicant to pay 50 percent of the Official Solicitor’s costs.
Those are my orders in these proceedings.