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
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksNow available in paperback
News
The 67P/CG comet as seen from the Philae lander
scienceThe most important scientific breakthroughs of 2014
Arts and Entertainment
Ian McKellen as Gandalf in The Hobbit: The Battle Of The Five Armies
film
Sport
football
Arts and Entertainment
Sarah Koenig, creator of popular podcast Serial, which is to be broadcast by the BBC
tvReview: The secret to the programme's success is that it allows its audience to play detective
News
Ruby Wax has previously written about her mental health problems in her book Sane New World
people
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: Sales Executives - OTE £60,000

£25000 - £60000 per annum: Recruitment Genius: Are you passionate about Custom...

Recruitment Genius: Care Workers Required - The London Borough of Bromley

£15000 per annum: Recruitment Genius: This homecare agency is based in Beckenh...

Recruitment Genius: Sales Executives - OTE £50,000

£25000 - £50000 per annum: Recruitment Genius: Are you passionate about Custom...

Recruitment Genius: Sales Executives - OTE £50,000

£25000 - £50000 per annum: Recruitment Genius: Are you passionate about Custom...

Day In a Page

Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas
La Famille Bélier is being touted as this year's Amelie - so why are many in the deaf community outraged by it?

Deaf community outraged by La Famille Bélier

The new film tells the story of a deaf-mute farming family and is being touted as this year's Amelie