Court of Protection declares lawfulness of care plan setting out arrangements for termination of woman’s pregnancy

A judge sitting in the Court of Protection has declared that a care plan setting out the arrangements for the termination of a woman’s pregnancy was lawful.

In Rotherham and Doncaster and South Humber NHS Foundation Trust v NR & Anor [2024] EWCOP, Mr Justice Hayden expressly declined to make a declaration that it was lawful and in the woman’s best interests to have a termination. However, he approved the proposed care plan and confirmed the lawfulness of it.

The application concerned NR, a 35-year-old woman who, at the time of the hearing, was 22 weeks pregnant. She was detained pursuant to Section 3 of the Mental Health Act 1983 at a psychiatric hospital.

The judge said: “This case comes before the Court of Protection because NR has been expressing ambivalence about carrying her baby to term.”

NR has an extensive history of drug and alcohol abuse. She has two daughters, H and L (now in their teens), both of whom were removed from her care.

The judge noted that NR has experienced a miscarriage in the past and a termination of pregnancy prior to the birth of her daughters when she was 15 years of age.

Looking at the relevant legal framework in relation to best interests, Mr Justice Hayden noted that Munby J in Re X (A Child) made the following point in “powerful language”:

"[9]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."

He added: “Those remarks of Munby J, for reasons that will appear below, have been foremost in my mind throughout the entirety of this case.”

The judge noted that the analysis of NR's wishes and feelings was an “extremely challenging exercise”.

He said: “She is as Mr Patel KC, on behalf of the Applicant [NHS] Trust, submits highly ‘conflicted’. NR has expressed views which indicate both that she might want a termination and that she could not bring herself to undergo it.”

Within a detailed chronology of NR's expressed views provided on behalf of the Official Solicitor, NR was reported as saying: “I don't want to keep it but I don't want to be awake to give birth to it. I can't see it; I don't want to kill it but I can't have this baby. I was drugged and that is how I conceived the baby. […] I don't want to have this baby but I can't give birth. If I can't be put to sleep then I will just have the baby and die and the baby can live. I can't kill it, please don't let me kill it but I don't want it either. I can't make this decision. I don't want to make this decision. It's too late but I can't keep it.”

The judge noted that NR told her youngest daughter of the fact of the pregnancy.

He said: “On 13th February 2024, NR received the scan of the baby. She kept it with her and showed it to her daughter. Miss F [the mental health social worker] agreed that she did so joyfully. It is difficult to see why she would do it otherwise. She considers that she is carrying a boy and there is an underlying sense in the recordings that this is something that, in different circumstances, would cause her pleasure.”

The judge continued: “NR finds herself on the horns of the most invidious dilemma. She clearly, and most probably correctly, apprehends that if she carries the baby full term, it will be removed from her at, or shortly after birth. This may even be her wish, though she plainly anticipates the possibility of being ambushed her own emotions. Many of the notes set out above reflect NR, at very least contemplating these possibilities. Equally, she plainly contemplates a termination, even though that may not sit easily with her prevailing beliefs. Ultimately, I do not, as I have said, find that the evidence in this case supports a determined view either to terminate or to continue with the pregnancy. The evidence, in my judgement, reflects a woman who is paralysed by conflict, which is pervasive.”

The judge noted that it would be “wrong and unsafe” to draw a concluding view as to what NR's wishes and feelings truly are.

He said: “What is required is that the Court, having considered best interests, makes a declaration as to lawfulness. The care plan which has been dynamic and has evolved during this hearing now emphasises the importance of helping NR to reach a decision by giving her clear and tangible options but emphasising that the decisions are hers.”

The amended plan set out its overall aim in the introductory paragraphs in the following terms:

"Prior to the commencement of this plan (preferably in the days before), staff at [the hospital] will take [NR] through the stages involved in the plan, explaining to her what is involved at each stage, that it is [NR]'s choice whether to go through each and every stage and that she can stop the process at any stage until the termination has reached an irrevocable stage…

“[NR] will not be compelled to undertake the termination or to undertake any of the stages in the plan. The staff shall use their clinical judgment (including verbal encouragement and discussion) to support [NR] to make her choice whether to go through each stage in the plan. No coercion or force will be used".

The judge noted: “the centrality of NR's autonomy is emphasised throughout the plan, and I am entirely satisfied, is recognised by all involved”.

Concluding the judgment, Mr Justice Hayden said: “The initial application for a declaration was that I should state that it is lawful and in NR's best interests to have a termination. I expressly decline to make that declaration. I do, however, approve the proposed care plan and confirm the lawfulness of it. Thus, I make a declaration that the care plan, setting out the arrangements for a termination of NR's pregnancy is lawful.

“So far, the options presented to NR have been uncoupled from the practical realities. There is now a finely structured plan where a decision, one way or the other, is unavoidable. It is important that NR knows that I am respecting her rights as an autonomous adult woman to make this decision for herself, with the help of those she chooses to be advised by. I should also like Ms Crow [agent for the Official Solicitor] to explain to NR that whatever decision she takes, will have my fulsome support.”

Lottie Winson