Woman with limited mental capacity can have her baby

 

A pregnant woman with significant mental health impairments will not have to undergo an abortion after a senior judge ruled that she had enough capacity to decide whether she wanted to become a mother.

The decision is a significant ruling which underlines the important legal point that those who lack the mental capacity to make decisions about key areas such as money and living arrangements may nonetheless be able to make deeply personal decisions about sex, relationships and giving birth.

The young woman, who is 18 weeks pregnant and cannot be named for legal reasons, was described in court as being in the “bottom one percent of the UK population” in terms of her cognitive abilities. Born with the genetic blood disorder sickle cell disease, she suffered from multiple strokes as a child that left her mentally impaired. She later won significant damages from a hospital in a medical negligence case and two deputies – her mother and a senior solicitor – were appointed by the Court of Protection to look after her “best interests” in the wake of the litigation. 

The court was asked to decide whether the woman should go ahead with the pregnancy after the solicitor who acts as one of her deputies expressed concern that she might not have the required mental skills to decide whether she should give birth or seek an abortion when it emerged in November that she had fallen pregnant.

The views of her treating clinicians and independent psychiatrist Dr Stephen Tyrer were sought and all professionals agreed that she had the capacity to decide what she wanted to do with the pregnancy. The court also heard that she was supported by a loving family who looked after her and wanted her to press ahead with the pregnancy.

Mr Justice Hedley, sitting in the Court of Protection at London’s High Court, ruled that while the woman “manifestly lacked capacity” to participate in legal proceedings, she nonetheless did have the ability to “decide whether or not to continue with, or terminate, pregnancy”.

In his ruling the senior family court judge, who is set to retire shortly, warned that courts and health officials should generally refrain from trying to decide whether someone with limited mental functions will be able to bring up a child and must instead concentrate solely on whether the pregnancy itself is in their best interests.

“My instincts are that has nothing to do with the issue of whether a pregnancy should continue simply because once a child is born, if the mother doesn’t have the ability to care for a child, society has perfectly adequate processes to deal with that,” he said. “I’m anxious about there being brought into capacity assessments – in relation to this issue – the ability to care for a child in the future.”

Ha also warned that people with severe learning problems who have some capacity must be allowed to make decisions – even if they are bad choices.

“Anyone who has sat in the family jurisdiction as long as I have spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships,” he said. “The purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do.”

The case highlights how capacity can often be a grey area that the court has to decide on. Patients in comas or those with severe physical impairments are clearly unable to make any decisions about their life. But those with learning difficulties and impaired mental faculties often show a much greater degree of autonomy in their decision making.

In such cases the Court of Protection has been called upon to rule whether an individual can make deeply personal decisions about sex and relationships. In early 2011, for example, a judge ruled that a gay man called “Alan” who had an IQ of 48 should be stopped from having anal sex because he lacked capacity to consent to sexual relations. However, in an illustration of how capacity can be both won and lost, the judge also accepted that Alan might one day be able to make decisions about safe sex if adequate sex education was provided by the local authority.

In another similar and tragic recent case, the court was asked to rule whether a young woman with severe learning difficulties should be sterilised because she kept falling pregnant. The woman’s mother wanted the procedure to take place immediately after an imminent caesarean section to deliver her daughter’s baby. The request was eventually withdrawn before further hearings could be called to decide on an outcome.

Start your day with The Independent, sign up for daily news emails
Life and Style
Living for the moment: Julianne Moore playing Alzheimer’s sufferer Alice
health
Voices
A propaganda video shows Isis forces near Tikrit
voicesAdam Walker: The Koran has violent passages, but it also has others that explicitly tells us how to interpret them
News
people
Life and Style
love + sex
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
News
people
Arts and Entertainment
Victoria Wood, Kayvan Novak, Alexa Chung, Chris Moyles
tvReview: No soggy bottoms, but plenty of other baking disasters on The Great Comic Relief Bake Off
Sport
Ashley Young celebrates the winner for Manchester United against Newcastle
footballNewcastle 0 Man United 1: Last minute strike seals precious victory
Life and Style
Tikka Masala has been overtaken by Jalfrezi as the nation's most popular curry
food + drink
News
Benjamin Netanyahu and his cartoon bomb – the Israeli PM shows his ‘evidence’
people
News
i100
Arts and Entertainment
80s trailblazer: comedian Tracey Ullman
tv
Arts and Entertainment
Stephen Tompkinson is back as DCI Banks
tvReview: Episode one of the new series played it safe, but at least this drama has a winning formula
Arts and Entertainment
Jeffrey Archer holds up a copy of 'Kane and Abel', a book he says was ripped-off by Bollywood
books
Life and Style
food + drink
Arts and Entertainment
Fay Weldon suggested authors should tailor their work for Kindle readers
books
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: General Processor

£7 per hour: Recruitment Genius: A vacancy has arisen for a General Processor ...

Recruitment Genius: Outbound Sales Executive - B2B

£18000 - £22000 per annum: Recruitment Genius: A great opportunity has arisen ...

Recruitment Genius: Online Sales and Customer Services Associate

£14000 - £16000 per annum: Recruitment Genius: Full time and Part time positio...

Ashdown Group: IT Manager - Salesforce / Reports / CRM - North London - NfP

£45000 per annum: Ashdown Group: An established and reputable Not for Profit o...

Day In a Page

War with Isis: Iraq's government fights to win back Tikrit from militants - but then what?

Baghdad fights to win back Tikrit from Isis – but then what?

Patrick Cockburn reports from Kirkuk on a conflict which sectarianism has made intractable
Living with Alzheimer's: What is it really like to be diagnosed with early-onset dementia?

What is it like to live with Alzheimer's?

Depicting early-onset Alzheimer's, the film 'Still Alice' had a profound effect on Joy Watson, who lives with the illness. She tells Kate Hilpern how she's coped with the diagnosis
The Internet of Things: Meet the British salesman who gave real-world items a virtual life

Setting in motion the Internet of Things

British salesman Kevin Ashton gave real-world items a virtual life
Election 2015: Latest polling reveals Tories and Labour on course to win the same number of seats - with the SNP holding the balance of power

Election 2015: A dead heat between Mr Bean and Dick Dastardly!

Lord Ashcroft reveals latest polling – and which character voters associate with each leader
Audiences queue up for 'true stories told live' as cult competition The Moth goes global

Cult competition The Moth goes global

The non-profit 'slam storytelling' competition was founded in 1997 by the novelist George Dawes Green and has seen Malcolm Gladwell, Salman Rushdie and Molly Ringwald all take their turn at the mic
Pakistani women come out fighting: A hard-hitting play focuses on female Muslim boxers

Pakistani women come out fighting

Hard-hitting new play 'No Guts, No Heart, No Glory' focuses on female Muslim boxers
11 best gel eyeliners

Go bold this season: 11 best gel eyeliners

Use an ink pot eyeliner to go bold on the eyes with this season's feline flicked winged liner
Katarina Johnson-Thompson: Heptathlete ready to jump at first major title

Katarina Johnson-Thompson: Ready to jump at first major title

After her 2014 was ruined by injury, 21-year-old Briton is leading pentathlete going into this week’s European Indoors. Now she intends to turn form into gold
Syrian conflict is the world's first 'climate change war', say scientists, but it won't be the last one

Climate change key in Syrian conflict

And it will trigger more war in future
How I outwitted the Gestapo

How I outwitted the Gestapo

My life as a Jew in wartime Berlin
The nation's favourite animal revealed

The nation's favourite animal revealed

Women like cuddly creatures whilst men like creepy-crawlies
Is this the way to get young people to vote?

Getting young people to vote

From #VOTESELFISH to Bite the Ballot
Poldark star Heida Reed: 'I don't think a single bodice gets ripped'

Poldark star Heida Reed

'I don't think a single bodice gets ripped'
The difference between America and Israel? There isn’t one

The difference between America and Israel? There isn’t one

Netanyahu knows he can get away with anything in America, says Robert Fisk
Families clubbing together to build their own affordable accommodation

Do It Yourself approach to securing a new house

Community land trusts marking a new trend for taking the initiative away from developers