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.

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Life and Style
tech

Board creates magnetic field to achieve lift

News
There have been various incidents of social media users inadvertently flouting the law
news

Life and Style
Stack ‘em high?: quantity doesn’t always trump quality, as Friends of the Earth can testify
techThe proliferation of online petitions allows us to register our protests at the touch of a button. But do they change anything?
News
Bourgogne wine maker Laboure-Roi vice president Thibault Garin (L) offers the company's 2013 Beaujolais Nouveau wine to the guest in the wine spa at the Hakone Yunessun spa resort facilities in Hakone town, Kanagawa prefecture, some 100-kilometre west of Tokyo
i100
Sport
CSKA Moscow celebrate after equalising with a late penalty
footballCSKA Moscow 2 Manchester City 2: Premier League champions let two goal lead slip in Russia
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

IT Technician - 1st Line

£19000 - £21000 Per Annum: Clearwater People Solutions Ltd: ***EXCELLENT OPPOR...

Special Needs Teaching Assistant

£50 - £65 per day: Randstad Education Bristol: Special Educational Needs Teach...

Trainee Recruitment Consultant Birmingham

£18000 - £23000 per annum + Comission: SThree: The SThree group is a world lea...

Year 3 Teacher

£100 - £130 per day: Randstad Education Chelmsford: KS2 TeacherWould you like ...

Day In a Page

Indiana serial killer? Man arrested for murdering teenage prostitute confesses to six other murders - and police fear there could be many more

A new American serial killer?

Police fear man arrested for murder of teen prostitute could be responsible for killing spree dating back 20 years
Sweetie, the fake 10-year-old girl designed to catch online predators, claims her first scalp

Sting to trap paedophiles may not carry weight in UK courts

Computer image of ‘Sweetie’ represented entrapment, experts say
Fukushima nuclear crisis: Evacuees still stuck in cramped emergency housing three years on - and may never return home

Return to Fukushima – a land they will never call home again

Evacuees still stuck in cramped emergency housing three years on from nuclear disaster
Wildlife Photographer of the Year: Intimate image of resting lions claims top prize

Wildlife Photographer of the Year

Intimate image of resting lions claims top prize
Online petitions: Sign here to change the world

Want to change the world? Just sign here

The proliferation of online petitions allows us to register our protests at the touch of a button. But do they change anything?
Ed Sheeran hits back after being labelled too boring to headline festivals

'You need me, I don’t need you'

Ed Sheeran hits back after being labelled too boring to headline festivals
How to Get Away with Murder: Shonda Rhimes reinvents the legal drama

How to Get Away with Murder

Shonda Rhimes reinvents the legal drama
A cup of tea is every worker's right

Hard to swallow

Three hospitals in Leicester have banned their staff from drinking tea and coffee in public areas. Christopher Hirst explains why he thinks that a cuppa is every worker's right
Which animals are nearly extinct?

Which animals are nearly extinct?

Conservationists in Kenya are in mourning after the death of a white northern rhino, which has left the species with a single male. These are the other species on the brink
12 best children's shoes

Perfect for leaf-kicking: 12 best children's shoes

Find footwear perfect to keep kids' feet protected this autumn
Anderlecht vs Arsenal: Gunners' ray of light Aaron Ramsey shines again

Arsenal’s ray of light ready to shine again

Aaron Ramsey’s injury record has prompted a club investigation. For now, the midfielder is just happy to be fit to face Anderlecht in the Champions League
Comment: David Moyes' show of sensitivity thrown back in his face by former Manchester United manager Sir Alex Ferguson

Moyes’ show of sensitivity thrown back in his face... by Ferguson

Manchester United legend tramples on successor who resisted criticising his inheritance
Two super-sized ships have cruised into British waters, but how big can these behemoths get?

Super-sized ships: How big can they get?

Two of the largest vessels in the world cruised into UK waters last week
British doctors on brink of 'cure' for paralysis with spinal cord treatment

British doctors on brink of cure for paralysis

Sufferers can now be offered the possibility of cure thanks to a revolutionary implant of regenerative cells
Ranked seventh in world’s best tourist cities - not London, or Edinburgh, but Salisbury

Lonely Planet’s Best in Travel 2015

UK city beats Vienna, Paris and New York to be ranked seventh in world’s best tourist destinations - but it's not London