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Court Of Protection Rules Abortion is in Young Woman’s Best Interests

The Court of Protection has authorised the termination of a young woman's pregnancy after declaring that she lacked the mental capacity to decide what was in her best interests.

The young mother-of-two in Re CS (Termination of Pregnancy) [2016] EWCOP 10 was in a relationship with an individual prone to domestic violence. When she became pregnant with a third child she told her friends and family that she did not wish to keep the baby due to her partner’s violent nature and asked her sister to accompany her to have an abortion.

She was subsequently attacked by her partner with such ferocity that she suffered a number of serious injuries including skull fractures, inter-cranial bleeding and brain damage.

Her partner was arrested and remanded in custody while she was treated in hospital. Her injuries were so severe it was unclear how well she would recover.

Under UK law, an abortion can usually only be carried out during the first 24 weeks of pregnancy. A week before the time limit for a surgical termination expired, the NHS Trust treating the woman applied to the Court of Protection seeking a declaration that she lacked capacity to decide to have an abortion and that it was in her best interests for the procedure to be carried out. The Official Solicitor represented the woman’s interests.

It appeared clear to the court from all of the medical evidence available that the woman lacked mental capacity to consent to a termination. There was also clear evidence that before she was attacked she had expressly voiced her wishes to undergo an abortion.

Despite contradictory views and wishes expressed by the woman to the Official Solicitor, on the basis of advice from doctors that she would be at risk of falling and injuring herself if she was to continue with her pregnancy, the court considered that ending her pregnancy was in the woman's best interests. The decision to authorise a termination was seen to accord with her wishes prior to her injuries as well as her overall health and welfare.

This was clearly a very difficult and sad case for everyone involved but these are the kind of cases the Court of Protection is faced with every day.

Often in cases where someone lacks capacity the Court of Protection is asked to make often difficult and finely balanced decisions about a person’s best interests under the Mental Capacity Act 2005.

Often the court appoints a Deputy to look after the financial affairs of someone who lacks capacity to do so themselves and to a lesser extent appoints a Deputy to deal with an incapacitated person’s welfare.

A court appointed Deputy is usually a close relative, friend or specialist Court of Protection Solicitor.

Clearly, the role of a Deputy carries a huge level of responsibility. Any decision a Deputy makes must always be in the best interests of the person they are acting for and as this case highlights that is often a difficult issue to determine.

Richard Copson is a senior Court of Protectin solicitor at Slater and Gordon Lawyers UK. Richard specialises in disability rights, mental capacity law and other human rights issues.

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