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Tag Archives: termination

Court rules on termination within care proceedings

 

Any case involving a termination is sad – setting aside any pro-choice v pro-life debates which are beyond my scope any decision about a termination has an enormous emotional impact on everyone involved and one simply can’t say how extensive those ripples will be.

 

In this case, the expectant mother was a 13 year old child, who was herself the subject of care proceedings. The father of the unborn baby was just 14.  This case was heard by the President of the Family Division – Re X (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1871.html

The assessments of the expectant mother’s capacity showed that she was not Gillick competent  – that is, she wasn’t someone who could make the informed decision for herself whether to go ahead with surgery or not. If she had capacity, it is highly unlikely, as the President comments, that treating doctors would either try to undertake an abortion against her wishes (in fact, they would be sued to forever and back if they did) or refused to perform the operation.  As she did not have capacity to make that decision, it was something that the Family Court could give guidance on.

 

The President points out in the judgment something that often gets overlooked – there isn’t actually a ‘right to choose’ abortion in English law (technically and legally, even if in practice it almost always comes down to a choice), abortion is only a lawful surgical procedure in the narrow constraints of the legislation

 

 

 

 

  • section 1(1) of the Abortion Act 1967  provides as follows:

“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith –

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman … ; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; …

The Family Court has no power to compel doctors to perform the surgery, or to determine whether those criteria are satisfied – the decision on both of those matters rests entirely with the doctors.

  • In a case such as this there are ultimately two questions. The first, which is for the doctors, not this court, is whether the conditions in section 1 of the 1967 Act are satisfied. If they are not, then that is that: the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful. If, on the other hand, the conditions in section 1 of the 1967 Act are satisfied, then the role of the court is to supply, on behalf of the mother, the consent which, as in the case of any other medical or surgical procedure, is a pre-requisite to the lawful performance of the procedure. In relation to this issue the ultimate determinant, as in all cases where the court is concerned with a child or an incapacitated adult, is the mother’s best interests.

 

  • An important practical consequence flows from this. In determining the mother’s best interests this court is not concerned to examine those issues which, in accordance with section 1 of the 1967 Act, are a matter for doctors. But the point goes somewhat further. Since there can be no lawful termination unless the conditions in section 1 are satisfied, and since it is a matter for the doctors to determine whether those conditions are satisfied, it follows that in addressing the question of the mother’s best interests this court is entitled to proceed on the assumption that if there is to be a termination the statutory conditions are indeed satisfied. Two things flow from this. In the first place this court can proceed on the basis (sections 1(1)(a) and (c)) that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or (section 1(1)(b)) that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of these conditions is satisfied the court is already at a position where, on the face of it, the interests of the mother may well be best served by the court authorising the termination.

 

  • There is another vitally important factor that in many cases such as this may well end up being determinative and which in this particular case is, in my judgment, determinative: the wishes and feelings of the mother.

 

Of course, given that the mother does not have capacity (and if she did, the family Court would not be getting involved at all) she CANNOT CONSENT to the surgery, but the President draws an important distinction between consenting to a course of action and accepting that course of action

 

 

  • This court in exercise of its inherent jurisdiction in relation to children undoubtedly has power to authorise the use of restraint and physical force to compel a child to submit to a surgical procedure: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180 and Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. I say nothing about how this power should appropriately be exercised in the case of other forms of medical or surgical intervention. In the case of the proposed termination of a pregnancy, however, the point surely is this. Only the most compelling arguments could possibly justify compelling a mother who wished to carry her child to term to submit to an unwanted termination. It would be unwise to be too prescriptive, for every case must be judged on its own unique facts, but I find it hard to conceive of any case where such a drastic form of order – such an immensely invasive procedure – could be appropriate in the case of a mother who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy even though the conditions in section 1 of the 1967 Act are satisfied.

 

 

 

  • 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.

 

 

 

  • There appears to be no clear authority on the point in this particular context (the cases in point all concerned other forms of surgical intervention) but counsel for X’s mother helpfully reminded me of something Lord Donaldson MR said in In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 79, which is in line with the approach I adopt:

 

 

“Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.”

 

  • In his oral evidence (see below) the Consultant in Obstetrics and Gynaecology captured the point, as it seemed to me, very compellingly. He said, and I agree, that it would not be right to subject X to a termination unless she was both “compliant” and “accepting”. Both, in my judgment, are important. Only the most clear and present risk to the mother’s life or long-term health – neither even hinted at in the present case – could justify the use of restraint or physical force to compel compliance. So the mother in a case such as this must be compliant. But mere acquiescence – helpless submission in the face of asserted State authority – is not enough. “Consent”, of course, is not the appropriate word, for by definition a child of X’s age who, like X, lacks Gillick capacity, cannot in law give a valid consent. But something of the nature of consent or agreement, using those words in the colloquial sense, is required. The Consultant’s word “accepting” in my judgment captures the nuance very well.

 

When the case had first been set up for hearing, the expectant mother X had been opposed to  a termination, and all advocates had prepared on that basis, but by the time the case got to Court her position had changed to wanting a termination.

 

This next aspect is novel – I don’t think a Judge has ever had to undertake this exercise before.  Part of what X had in her mind was whether, if she gave birth to the baby, whether there would be care proceedings and what the likely outcome of those proceedings would be.  That’s a fair question on her part and it clearly would have a significant impact on her feelings. As a matter of law, the Court can’t consider an application in care proceedings until the baby is born, and even a decision at interim stage (whether the baby could be with mother immediately after birth) would only be an interim decision and the final outcome would not be known until the baby if born was about six months old. So a definitive answer was not possible – all that could be attempted was an indication of what seemed likely. Many Judges might have hidden behind the legal difficulties of expressing a view on this, but the President attempted to answer the very real and very human question.

 

One factor which it did seem important to take into account was the likelihood or otherwise of X being able to keep her baby if there was no termination. This required me, necessarily on the basis of incomplete information, to predict the outcome, not merely of the care proceedings already on foot in relation to X but also of the care proceedings in relation to her child which almost inevitably would be commenced after the birth. The need for a judicial view on a point which might be seen to be pre-judging the care proceedings was, in my judgment, inescapable. My view, which I expressed at the hearing and which was embodied in my order (see below) was that there was “very little chance” that X would be able to keep her baby if it was born. Having done so, however, it seemed to me that I should not be further involved in the care proceedings, so I recused myself.

 

[For non-lawyers, ‘recused myself’ means that the President had ruled that he would not be involved in any of the care proceedings involved in X’s baby IF she did go on to have the baby. It wouldn’t be fair for him to hear the case having indicated that X had very little chance of being able to keep her baby.  We don’t know from this judgment any of the background or why the Judge would have given that indication – there are things that the Judge saw and read and heard that we have not]

 

The President made a raft of orders, that in effect meant that his indication should be explained to X, and that IF she was in agreement with a termination the doctors would be able to proceed if they wished to (but that if she did not agree, it would not take place).

 

Thirteen year old has the capacity to terminate pregnancy

You may have encountered this one in the mainstream Press – even the Telegraph coverage was fairly low-key and restrained and came close to appreciating that we sometimes ask High Court Judges to make decisions that none of us would want to have to take. (Hopefully the Telegraph’s supply of raw steaks will arrive later in the week and normal service will be resumed)

 

The case is Re A (a child) 2014    (seriously truly, could not even a sentence in the Encylopedia Munbytanica of guidance we’ve had to swallow have covered “Judges, please give your cases names that drop a hint as to what they are about”? )

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1445.html

 

This was the High Court being asked to provide guidance on whether this SPECIFIC 13 year old had the capacity to consent to the termination of a pregnancy that she was asking to have. It doesn’t mean that all 13 year olds, or even an average 13 year old can agree to an abortion, it was dealing with a SPECIFIC child. Although of course in the process of answering that specific question, guidance for later cases does emerge.

The child A, was 21 weeks pregnant, and learned of the pregnancy 4 days earlier when her grandmother took her to the doctors. Now, where in a Court of Protection case, the Court would determine whether A has capacity, and if not, make a best interests decision, the High Court are in a different situation – they simply had to decide whether A had the capacity to make that decision for herself.

The Trust involved had tried to ascertain with A, what her understanding of the issues were

 

 

  • The previous meetings between A and the specialists revealed her to be uncommunicative and in the result a view was formed or, at the very least, a doubt was raised as to whether she had the necessary competence. At this point, I should explain what the legal test is for the necessary competence. It is set out in the well-known case of Gillick v West Norfolk and Wisbech Area Health Authority & Anr, [1986] 1 FLR 224 at page 239 in the speech of Lord Fraser Tullybelton where he stated:

 

 

“I conclude that there is no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.”

 

  • The Trust has been represented before me by Mr Mylonas, QC and he agrees that if I am to determine that A does have sufficient understanding and intelligence to know what a termination would involve, then that is the end of the matter. The actual decision in Gillick concerned the provision of contraception. In that case, the attempt by Mrs Gillick to have declared unlawful a policy which would have permitted her children under the age of 16 to be given contraception was unsuccessful.

 

 

 

  • It is implicit in that decision that provided the child, under the age of 16, has sufficient understanding and intelligence, she can then be lawfully prescribed with contraception even if the result of that would lead her to take steps which are wholly contrary to her best interests. So, the question of best interests does not really inform the primary decision I have to make which is whether she has the necessary capacity.

 

The Judge took the unusual step of rather than attempting to summarise the evidence of the consultant psychiatrist, Dr Ganguly, he would instead annexe it to the judgment. It would therefore be wrong of me to try to summarise it, and as it is relatively short, I will set it out here

DR SAROJIT GANGULY (AFFIRMED) (Via Video link)

MR JUSTICE MOSTYN: Thank you very much. Dr Ganguly, I am the judge sitting in this court today. I just want to read out one very short passage from the famous decision of Gillick v West Norfolk & Wisbech Area Health Authority [1985], all right.

A. Yes.

MR JUSTICE MOSTYN: It is very short. It says this:

“There is no law which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.”

A. That’s correct.

MR JUSTICE MOSTYN: That is the test.

A. Yes.

MR JUSTICE MOSTYN: Now you will be asked some questions by Mr Mylonas.

 

MR MYLONAS: Can I first of all ask you questions about your expertise, how long you have been a psychiatrist for and what your experience is of carrying out capacity assessments.

A. Sure. My name is Dr Sarojit Ganguly. I am a Member of the Royal College of Psychiatrists and I am on the specialist register for child adolescent psychiatry, so I am a child and adolescent psychiatrist. I have been in psychiatry for the last ten years or so and I have been a consultant in child and adolescent psychiatry for the last four months. I am employed by the Bradford District Care Trust.

Q. You have been involved with paediatric psychiatry. How often do you carry out assessments of capacity in children?

A. I have to say that this very formal setting, and I am being asked questions in a very formal court setting, I have not had occasion to give evidence in terms of capacity for a young person. But having said that, any kind of decision that we take, any kind of treatment that is undertaken for young people day in and day out, involves a capacity assessment as part of routine.

Q. When did you assess A — we will refer to her as A because we are sitting in open court and members of the press may attend?

A. I assessed her this morning.

Q. Where did that assessment take place?

A. This was at the Bradford Royal Infirmary at N4 Ward. That is one of the maternity wards in Bradford Royal Infirmary.

Q. How long did you speak to her?

A. We stayed for approximately 45 minutes.

Q. Had you had the opportunity to speak to any of the other family members?

A. That’s right. I had occasion to speak to A’s mum and her grand mum, and I also previously spoke to the social worker to ascertain the background of the situation and the case and to ascertain some of the history regarding A.

Q. When you spoke to A, did you form the view … what view did you form about her understanding of the pregnancy?

A. From what I observed today, she certainly had a good understanding of the fact that she was pregnant and what it involved. We had fairly extensive discussions … can you hear me?

MR JUSTICE MOSTYN: Yes; very clearly.

A. So we had fairly extensive discussions with regards to both the pregnancy and some of the options and she seemed to be really following the conversation quite clearly.

Q. Can I just ask some specific questions then?

A. Yes.

Q. And I want some understanding of the different options open to her. If she continues with the pregnancy, did you form a view that she understood what that would mean, both during the course of the pregnancy and after she had had the child?

A. Well, what she did tell me was that she wanted a termination of pregnancy and she said that the reason why she was saying that was that, in her view, she would not be able to cope with carrying on with the pregnancy and that she would be feeling stressed if she carried on with the pregnancy.

 

Q. That is a very helpful one sentence summary of her position. How much discussion was there between you about her desire to end the pregnancy?

A. Sure. Well, in the first instance she was asked about what her views were and she was clear and persistent throughout the interview in saying that she wanted a termination of pregnancy, that she did not want the baby, is the way that she put it I think. We communicated to her or we asked her … sorry, I will rephrase that. We went with her about the various options, including having a termination, continuing with the pregnancy, having the baby, having the baby taken away or perhaps rearing the child and she was able to, in my opinion, understand it because she was able to recount, she was able to tell us again, she was able to retain the information and tell us what these options were. So it would appear that she had a fair amount of understanding of what we were talking about.

Q. Can I move on then to deal with her understanding of what was involved in a termination.

A. Sure.

Q. Because what is involved in a pregnancy and the birth, the fact she would have a small child to look after is perhaps more obvious to a 13 year old girl than what is involved in a termination.

A. Yes.

Q. What did you explain to her about what was involved in a termination?

A. Sure. During this interview, the obstetrician, Dr Kukreja was also present and that was very helpful because she was able to go through in great detail about both the procedure and the risks and benefits of the procedure in question. Whilst these options were being discussed, she had sufficient option to check out anything that she did not understand and we tried to make the discussion child-friendly so that she would be able to understand the gist of what we were saying. So I think there was a fairly extensive discussion about what the termination of pregnancy involved in terms of both the process as well as the risks.

Q. Can I just compare that very important view with the information that is before the court arising from discussions with the paediatricians and obstetrician previously when it was suggested that A was not very communicative and that the provisional view was reached that there was some doubt about her ability to understand. It sounds as though she was much more communicative this morning?

A. I have not seen her prior to today morning but from what I have been told and having chatted with my colleagues, other clinical colleagues, yes, it would appear that … I can only suppose that this has been a particularly stressful week for her and from what I have been told by the other doctors, that she was definitely more communicative today than she was previously, bearing in mind that it was not … she still comes across as a very soft-spoken girl and one has to bear in mind that, you know, her age is such and the situation was such that she didn’t say a lot. But I think in my opinion she said enough to be able to communicate and to tell us clearly about what she wanted.

Q. Can I just go back then, when you talk about the discussions and the obstetrician having gone through the procedure in great detail, and any checking of it. Did you form a view about whether she understood what was being explained to her and understood the consequences of a termination?

A. It is difficult to exactly say whether she understood every nuance of the conversation, but it appeared as if she definitely got the gist and the main points of what was being discussed in that what the procedure would involve, for example, taking tablets, et cetera, in, for example, what would happen if it did not carry on according to plan, that some of the options that the doctors might have to go through. So these things I think in broad and general terms I think she understood. Whether she understood everything in great detail is questionable, because she is after all, 13 years old. So I would say that she understood the gist of it to the extent that it would be necessary for her to reach a decision.

Q. And fundamentally that, if she reached a decision to terminate the pregnancy, that she would no longer have the baby and there would be no prospect of her continuing with it?

A. Exactly that. Exactly that.

MR JUSTICE MOSTYN: Could you ask if she understood the risks of this surgery, what could go wrong?

MR MYLONAS: Doctor, you spoke about the obstetrician discussing the details with A, as part of that conversation, were the risks discussed as well, the risks of termination?

A. Yes, they were. There were a couple of things to direct here. I think what was being communicated very clearly was that under the circumstances, any course of action would carry a certain amount of risk and I am just putting, I am just basing my statement here from what I have heard from my other medical colleagues here, but my understanding from those conversations was that any course of any action, as in carrying on with the pregnancy or the termination of pregnancy, carried with them sufficient amount … sorry, it carried with them risks, and it would be difficult to actually say which one would be a more risk process actually. I think in the conversation with A, there was very clear communication about risks involved with the termination of pregnancy procedure.

Q. Thank you. His Lordship’s question was whether you thought she understood the risks that were being explained to her?

A. I think in general terms yes. I mean, for example, some of the things that the doctor was telling her was that, you know, if the medicines were not sufficiently successful, then she may have to stay in hospital, she might have to go through invasive procedures, there might be risks of infection, it might affect, for example, the prospects of having children subsequently. So actually, without going into too much detail, I think we had a fairly extensive discussion about the various risk elements, both immediate and subsequent. And in the room, of course, her mum and grandmother also at hand and they felt that the discussion was something that I think A was … she understood adequately.

Q. Can I just deal with two more issues? You have referred to mum and grandma being in the room with her and I know that she has been staying at home with her mum and possibly her grandma overnight. Did you form the view that her decision about the termination was her own wish or that she had been, perhaps, coerced or pressed into that decision by —

MR JUSTICE MOSTYN: Or influenced.

MR MYLONAS: — or influenced by her family?

A. We went into that specifically. We addressed that question specifically during our interview this morning and both A herself … I mean, A was clear in telling us that this decision was her own, that she had made up her mind. Independently, the mum and grandma said that they did not in any way coerce her into this decision. I would also like to point out that in the interview itself, I did not detect any obvious sign of distress from A’s part. She seemed calm, she seemed appropriate. Her responses, her eye contact and her speech seemed appropriate and I did not feel in my opinion, I did not detect any sign of distress or any suggestion that she might be either distressed or suffering from any acute mental illness for that matter.

MR JUSTICE MOSTYN: Right.

MR MYLONAS: There was only one other issue I just wanted to see if you could help us with, Doctor. You may want to address this because it was a primarily an assessment of capacity. One of the issues is about the impact of either a termination or continued pregnancy on A. Have you formed a view as to whether or not it would be in her best interests from her mental health perspective to continue or to end the pregnancy?

A. That is a very difficult thing to comment on you will appreciate. Having said that, one of the things that A specifically said when they asked her about why she wants not to have the baby, she said that having… continuing with the pregnancy or having the baby would, I quote, she said that “I will not be able to cope.” When I asked her what she meant by that, she said that she would feel too stressed. So I would assume from this response that in her mind, continuing with the pregnancy would be something that she would find distressing as to what effect directly it might have in terms of either the termination or the continuing of pregnancy. At this point in time it is difficult to assess because, as I said, in the interview as such, she presented as appropriate and there was no sign of distress. I have heard that she is generally a bubbly, happy child from what her parents tell me. So once again, it is difficult to say with certainty what the effect might be but from her own point of view, she communicated that it would be stressful to carry on with the pregnancy

 

Having heard that evidence, these were the Judge’s conclusions

 

  • he (Dr Ganguly) was clear that A had a very clear understanding of her position and of the options that were available to her. Those options, namely continuance of the pregnancy or its termination, were discussed.

 

 

 

  • Dr Ganguly was clear to me that she fully understood the implications of the options; the risks that were involved in relation to each option were explained to her and, in his opinion, she fully understood that. Although she was softly spoken, she was able to explain to him that her wish was to terminate the pregnancy as she felt that she could not cope with its continuance and it would stress her to a considerable degree. She was very clear in her understanding that whichever option she chose it would carry a certain amount of risk

 

 

 

  • Dr Ganguly was also clear that the decision that was reached by A was hers alone and was not the product of influence by adults in her family. Dr Ganguly did not detect in her any sign of distress when she set out her position to her.

 

 

 

  • On the basis of that evidence which, as I say, I have attempted to summarise, probably inadequately, I am completely satisfied that A has sufficient understanding and intelligence within Lord Fraser’s definition and I accordingly make a declaration to that effect. It will now be for A to decide what she wishes to do. Her present intention is to have a termination and, of course, if she goes down that route she must have it soon because the legal 24-week limit is fast approaching. If she decides to continue with the pregnancy, then I am expecting that her family and, indeed, Social Services will need to give her considerable support and assistance. It also goes without saying that should she go through with a termination her family will need to be at her side and to assist her and support her after what is inevitably going to be an unpleasant and traumatic experience.

 

 

 

  • All those latter comments of mine are irrelevant to the primary decision I have to make which is that I am satisfied that A has the necessary capacity to make her own decision. The consequence of that declaration is that if a termination is performed, there is no question of any liability, either civil or criminal, being imposed on the Trust or any of the clinicians who are involved in the procedure.

 

 

The Judge sat in open Court to give the judgment  I am giving this judgment in open court. It is important that I begin with that statement so that anyone who later reads the transcript of this judgment understands that proceedings of this nature are not done in secret by some mysterious court determined to prevent the public from knowing what is being done in its name.

 

He did go on to make a Reporting Restriction Order preventing the child from being identified, for obvious reasons.

 

It appears that A had a very supportive family, who were going to be there for her and were not challenging her decision or her capacity to make that decision. That probably would not have materially affected the outcome, since as we know from Gillick, if the child has capacity to make her own decision, resistance from those who hold parental responsibility for her does not allow them to veto her decision. But as the Judge observed, this girl will need all of the love and support of her family in what is bound to be an emotional and painful time.

 

The Judge shied away from setting a specific set of capacity questions on consent to an abortion, focussing instead on whether she understood what was being explained to her and was weighing it up against what she felt was best for her (this seems to be in the spirit of the new approach – there was a Court of Appeal decision from the Court of Protection last week RB v Brighton and Hove City Council 2014  [Suesspicious Minds was not involved in the case in any way] http://www.bailii.org/ew/cases/EWCA/Civ/2014/561.html where the Court of Appeal were deprecating the concept of professionals on the ground having to ascertain capacity with reference to volumes of caselaw rather than the principles of the Act itself)

As I said at the outset, we have to be mindful that we as a Society end up giving responsibility to High Court Judges to make decisions where there is no easy answer and there was going to be a sad outcome in either course of action. I think this Judge was careful, courteous, thoughtful and kind.

 

I hope that this never comes up, but I imagine that a Trust would have a very difficult time, ethically speaking if a 13 year old who lacked capacity but was clearly saying “No” to a termination was having consent exercised on her behalf by parents saying “yes”.  I hope that I never have to read a judgment like that, because it would be an awful situation for everyone. As a matter of law, the parents would have the right to consent, but the doctors are not necessarily obliged to provide the operation. I don’t think that a Court could compel them.