Capacity to give consent: medical evidence is not conclusive

The High Court has recently ruled in the case of Re SB (Capacity to consent to termination) [2013] EWHC 1417 that a lady suffering from bipolar disorder and who was being detained under the Mental Health Act 2005 did have capacity to consent to an abortion despite advice to the contrary from psychiatrists.


SB was a 37 year old woman who had been living with bipolar disorder for nearly 8 years. She had been detained under the Mental Health Act on a number of occasions but was taking medication to limit the impact of her condition upon her day to day life. She had previously been pregnant but had chosen to have a termination at 19 weeks. She become pregnant again by the same man, to whom she was by then married. At 17 weeks gestation she stopped taking her medication and her mental health declined severely. At five months gestation SB was again detained under the Mental Health Act by which time she expressed the wish to have a termination. The treating psychiatrists and hospital staff were of the opinion that she lacked capacity to consent to a termination. An application was therefore made to the Court of Protection.

The judgement

The court heard evidence from SB's psychiatrist who did not believe she had capacity at that time to consent. An independent psychiatrist agreed with that view, although also concluded that SB had litigation capacity.

In applying the relevant test under s.3 the court had to decide whether SB lacked mental capacity at the time she had made her decision. They concluded that although she was clearly suffering from a disturbance of the mind at the time of the proceedings she had given clear and reasoned instructions in the weeks before when she had expressed her wish to have a termination. SB had said that during the later stages of her pregnancy she had been unhappy and did not want her child to have to grow up with her in detention. She also said that she saw no reason to have a child which would have to be put straight up for adoption. She expressed doubts about her own ability to raise a child and she said she would contemplate suicide if she was not allowed to obtain a termination.

The court decided that her reasoning was rational, albeit that her reasons were not necessarily good ones. The court followed the well established principle that a patient cannot be considered to lack capacity just because they make unwise decisions, thereby respecting her autonomy.


This is an interesting recent case on a very difficult issue.  Each case will turn on its own facts, but it is as well to recognise that the court will look carefully at all the evidence of capacity and will not merely follow the opinion of medical practitioners when deciding the issue.

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