This week we take a look at a recent case which uses human rights to put a woman’s wishes and feelings at the centre of decision making.

The Facts of the Case

The case was about AB, a 24 year old woman with learning disabilities. After returning from a staying with a family friend in Nigeria in April 2019, AB had become pregnant in circumstances which remain unclear.

After carrying out psychiatric and social assessments, the NHS Foundation Trust responsible for AB’s antenatal care decided that it would be in her best interests for the pregnancy to be terminated.

The healthcare professionals involved in AB’s case agreed she lacked capacity to consent to a termination. However, her mother was opposed to the termination taking place. So the NHS Trust made an application to the Court of Protection asking it to make the decision that it was in the her best interest for her to have an abortion.

By the time the matter came before Mrs Justice Lieven, on 20 and 21 June 2019, the woman was 22, going on 23 weeks pregnant. In her judgement, Justice Leiven noted that:

“the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 [Right to Family and Private Life] rights.

What does a Right to Private and Family Life Mean?

The right to private and family life protects everyone’s right to make decisions that affect them, including care and treatment, physical and mental well-being, as well as family relationships. This right can be restricted by public officials, where they can show it is lawful, for a permissible reason (e.g. to protect the person/others), and proportionate. You can find out more about these human rights in our new online human rights and health tool, here.

The Court of Protection Decision

In AB’s case, Justice Lieven goes on to point out that in these situations, where a person has been found not to have capacity to make their own decisions;

“the court is given the duty of deciding enormously difficult decisions which the individual may well not agree with, for the very reason that the individual does not fully understand the decision to be made.”

Justice Leiven found that on balance, taking into account both the risks and benefits of continuing the pregnancy, AB’s best interests lay in a termination taking place. To come to this decision she considered: medical risks; psychiatric risks; emotional/psychological risks from termination; emotional/psychological risks from having the baby and AB's wishes and feelings.

The Court of Appeal Decision

This decision was quickly appealed. The Court of Appeal again stated that the decision that they had to make would have a massive impact on AB’s Article 8 rights to a Private and Family Life:

“However one looks at it, carrying out a termination absent a woman's consent is a most profound invasion of her Article 8 rights, albeit that the interference will be legitimate and proportionate if the procedure is in her best interests. Any court carrying out an assessment of best interests in such circumstances will approach the exercise conscious of the seriousness of the decision.”

The Court of Appeal felt that Justice Lieven had relied too heavily on the views of the doctors instead of on non-medical factors. Referring to the relevant law (Mental Capacity Act 2005, which further protects Article 8 rights on autonomy), they made clear that;

“making decisions for people who may be lacking capacity must respect and maximise that person's individuality and autonomy to the greatest possible extent. In order to achieve this aim, a person's wishes and feelings not only require consideration, but can be determinative, even if they lack capacity.”

The Court of Appeal found that an objective view may find that it would an unwise choice for AB to have her baby, a baby which she will never be able to look after herself and who will most likely be taken away from her. However, when making substituted decisions, courts must take into account both wishes and feelings of the person involved and it is essential to consider that inasmuch as she understands the situation, AB wants her baby.

Justice Lieven placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. The Court of appeal notes that;

“She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes.”

Those who knew her best, such as her mother and her social worker, also believed it to be in her best interests to proceed with the pregnancy. Taking all this into consideration, the Court found that the evidence as a whole was:

“not sufficient to justify the profound invasion of AB’s rights represented by the non-consensual termination of this advanced pregnancy”

 What does this mean for practice?

In its judgement, the Court of Appeal, focused on the importance of taking into account the wishes and feelings of the person whom the decision concerns. This is an important aspect of ensuring respect for a person’s right to private and family life.

This approach does not just apply to the courts. Whenever a decision is being made for a person on an issue that they have been assessed as lacking capacity to make, officials need to consider that person’s wishes and feelings as a central part of the decision making process. The judgement also notes  the importance of giving consideration to the views of those who know the person best such as parents and social workers, not only the professional making the decision.

Ensuring the person’s views and feelings, and hearing from those who know them best, is key to ensuring substituted decisions made by officials respect human rights.

Do you #KnowYourHumanRights?

Our new online advocacy tool supports people to know when their human rights may be at risk in mental health and mental capacity services, and how to use the law to resolve these issues in everyday discussions with staff.

 You can access the tool here: