Last week, a British appeals court ruled a mentally incapacitated woman would not be forced to have an abortion against her will, overturning the decision made by the country’s Court of Protection.
The original decision was met with shock by the country’s Catholic Church and pro-life organisations.
Although little is known about the woman’s circumstances, it is known she is in her mid-20s, Catholic, and wants to keep have her baby. Her mother – a midwife nurse – and her social worker were both against her being made to have an abortion.
The extent of her mental capacity has not been made fully known to the media, but reports from the court say she suffers from emotional problems and has the mental age of someone between the age of 6-9.
An obstetrician and two psychiatrists had supported the 22-weeks-pregnant woman being forced to have an abortion because they asserted her behaviour could pose a risk to a baby despite assurances from the woman’s mother that she was prepared to care for the child.
The Court of Protection was established by the Mental Capacity Act of 2005, which says a person who lacks the capacity to make a decision, must have the decision made in their “best interests”.
Justice Nathalie Lieven of the Court of Protection decided that in this case, it meant forcing a woman to have an abortion against her will.
“I am acutely conscious of the fact that for the State to order a woman to have a termination where it appears that she doesn’t want it is an immense intrusion,” Lieven said. “I have to operate in [her] best interests, not on society’s views of termination.”
The judge then said the woman “would like to have a baby in the same way she would like to have a nice doll”.
Appeal
During the appeal hearing, it was discovered that doctors told the woman that she “would have an operation and when she woke up the baby would no longer be in her tummy, but she would get a new doll”.
The facts of this case were “both astonishing and shocking”, according to Bishop John Sherrington, the lead bishop for life issues at the Catholic Bishops’ Conference of England and Wales.
The question is: Is this case an aberration, or a disturbing sign that “best interests” will be used to justify such decisions regularly in the future.
There is evidence that this case is an anomaly, most importantly due to the fact that the original judgement to force the woman to have an abortion was overturned the next business day.
The Mental Capacity Act specifically calls for the person’s views and beliefs – including religious beliefs – to be taken into account when making decisions for them, and also says their family members and social workers should be consulted.
Although the Appellate panel that reversed the Court of Protection hasn’t yet released the written judgement with their reasoning, it is hard to believe that the fact the court ignored the woman’s desire to go through with her pregnancy, as well as the views of her family, didn’t play a role.
Also, Right To Life UK documented the fact that Lieven is a long time pro-choice advocate, and suggested this may have affected her decision-making in this case.
And finally, the case caused widespread condemnation in the country, with most newspapers taking a negative view of the initial decision, and more than 100,000 people signing a petition opposing it in just a few days.
On the other hand, many people see a pattern forming in the UK to take medical decisions completely out of the hands of families, with “best interests” being used as a trojan horse.
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This is not the first time “best interests” has caused controversy in British medical cases. Last year’s case involving Alfie Evans, and the previous year’s case with Charlie Gard – both children with life-limiting diseases – involved medical personnel seeking to end treatment in the child’s “best interest” over the objections of the parents. (Although these cases aren’t covered by the Mental Capacity Act, which only covers adults, many of the same principles are used in the UK when dealing with children.)
Sherrington said Lieven’s judgement “raises serious questions about the meaning of ‘best interests’ when a patient lacks mental capacity and is subject to the court’s decision against her will”.
Bishop John Keenan of Paisley in Scotland called the original decision “wrong on so many levels,” and raised concerns that it introduced “a dangerous new development in the overreach of the power of the state over its citizens”.
According to Anscombe Bioethics Centre, the leading Catholic bioethics think-tank in the UK, the Court of Protection’s judgement represented an overreach of the state’s powers of coercion and suggested “serious inadequacies in the way the ‘best interests’ test is used by courts to make decisions where patients lack capacity”.
We remain concerned that the judge ever had the authority to make this kind of ruling in the first instance”
“It is useful to recall that in the present case, the pregnancy does not pose a risk to the physical health of the mother, nor has the unborn child been diagnosed with any disability. The woman in question does not want the abortion, and her own mother has offered to care for the baby. These are circumstances which do not of themselves suggest any legal grounds for abortion, much less a forced abortion which goes against the rhetoric of choice so often used to justify the procedure,” the centre said in a statement.
The statement noted the original judgement expressed “a condescending view of someone with a learning disability, for even a child can tell the difference between a doll and a baby”.
According to Right To Life UK, several steps now need to be taken.
“We are calling on the Department of Health to urgently reveal how many women have been forced by a hospital to have an abortion against their will in the UK and make it clear how they will ensure it will not happen again,” said Clare McCarthy, the pro-life group’s spokesperson.
McCarthy said that in the end, a legislative solution is necessary to prevent the judiciary from making decisions like this.
“We are thrilled that Justice Lieven’s decision has been overturned but remain concerned that she ever had the authority to make this kind of ruling in the first instance.
“While Parliament may not be able to directly interfere in the decisions of the judiciary, they can create legislation that stops the judiciary from making this kind of decision in the first instance,” she said.
And that would be for the best interest of everybody.
Charles Collins is Managing Editor of Cruxnow.com
