Re SS (24 October 2001) (unreported) (FAM)

Mental health – capacity – consent – pregnant patient – termination – abortion

Psychiatric hospitals should develop protocols for dealing promptly with possible terminations for pregnant patients who lack capacity to consent.

S was a 34 year old woman with a history of mental illness, who had been in and out of mental hospitals. On her latest admission to hospital, S was 16 weeks pregnant and had indicated that she wanted to have a termination, but had changed her mind on more than one occasion.

About a month after her admission to hospital, S was seen by Dr W. Given the attendant risks of a late termination (which would involve inducing a still birth), the doctor concluded that on balance it was in S’s best interests to continue with the pregnancy, despite S having said that the baby was dead and that she would risk inducing the termination herself.

Two weeks later, Dr W’s opinion was supported by Dr M, who concluded that, although S had said that she could not cope with looking after a baby and that she would kill herself if she did not have a termination, S had no understanding of what a termination at that late a stage (some 22 weeks into her pregnancy) would involve, and there was insufficient evidence to justify a termination as being in S’s best interests, assuming she lacked capacity to consent.

When the application seeking a declaration that it was in S’s best interest to have a termination came before the judge, S was already 24 weeks pregnant. The termination would have had to have been performed the following day to be within the legal time limits.

Having weighed up the relative risks and disadvantages, the judge concluded that, on balance, a normal delivery followed by the removal of the child would be less detrimental for S. The judge emphasised that the nature of the procedure to terminate a pregnancy at over 23 weeks was a powerful factor in his decision: had the case come to him somewhat earlier he was confident that this decision would have been different. The judge thought it essential that hospitals develop protocols for dealing with the issue of the termination of pregnancies for psychiatric patients; that those protocols should be designed to address the issue promptly so that, wherever practicable and in the patient’s best interests, a termination can be carried out at the earliest opportunity; and that such protocols should ensure that the patient is referred at an early stage to independent legal advice.

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