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30 September 2022 | Comment | Article by Roman Kubiak TEP

S v Birmingham Women’s and Children’s NHS Trust: COP rules that S had capacity to terminate pregnancy

Meg Edwards, Solicitor in the Contested Wills, Trusts and Estates team discusses a ‘best interests’ and capacity case where the Court of Protection was required to consider matters under severe time constraints.


In this recent case, S (a protected party) was, at the time of the hearing, 38 years old and 23 weeks pregnant. She wanted to terminate her pregnancy. Section 1 of The Abortion Act 1967 provides that a termination is only permissible in the event that a pregnancy has not exceeded 24 weeks and, therefore, the court was under intense pressure to consider whether S had capacity to consent to a termination.

S suffered with bipolar affective disorder, having been diagnosed in 2010. Since her diagnosis, she had been sectioned and had taken two overdoses which resulted in her being admitted to intensive care. However, despite the disorder, S was a high achiever, having obtained a degree from Cambridge University and then gone on to lead a career in marketing.

S had historically voiced her intentions to become a mother before she reached the age of 40 and had planned on having children with a previous partner, who, it was reported, did not have the same intentions. This resulted in the breakdown of their relationship. As a result of the relationship breakdown, S underwent IVF treatment in order to conceive a baby by sperm donor. The first round of treatment was successful, and S fell pregnant in October 2021.

In order to undergo IVF treatment, S stopped taking her prescribed medication. She had discussed this with her Community Psychiatric Nurse prior to doing so. Following the withdrawal, S began to experience symptoms relating to her disorder. However, being concerned that the IVF process would be put on hold, she did not tell her nurse of these symptoms.

S’s mental health continued to deteriorate until, on 31 January 2022, she was sectioned. Following this, at 19.5 weeks pregnant, S started voicing concerns about her pregnancy. During various meetings with healthcare staff, she informed them that she was considering a termination. This was as early as 1 February 2022.

On 18 February 2022, so over two weeks later, a ‘best interests’ meeting was held for S at which it was concluded that S lacked the capacity to consent to a termination and it was not in her best interests to have one, with no further consideration of the matter proposed.

Four days later, S instructed solicitors, who, having received confirmation from the respondents that no application would be made to the court, brought proceedings and requested an urgent hearing.

The evidence

The court considered various evidence during the hearing. Clinicians who had assessed S considered that the ‘risk to S’s mental health was greater in terminating than in continuing the pregnancy’ given S’s firm views and historic desire to bear a child and that S was not ‘absolutely certain’ that she wanted a termination.

S’s sister also provided evidence. She told the court that, for years, S had spoken of her intention to become a mother before the age of 40 and that in the event she failed to do so, had spoken of suicide.

S herself then gave evidence. She explained her concerns of being a single parent and raising a child without a father. She believed the IVF procedure to be ‘a bit of a mistake’ and suggested she had not considered this properly following the breakdown of her relationship. S also noted that she had frozen eggs and embryos which could be used in the future, which provided her some reassurance. S conceded that she could not be 100% certain that she wanted a termination but wished that she could go back in time to have avoided the pregnancy.

The decision

The judge was critical of the Respondents, particularly for their failure to make an application following the best interests meeting, given how urgent the matter was.

Ultimately, the judge decided that the presumption under section 1 of The Mental Capacity Act 2005 (that S had capacity), had not been rebutted. As such, S could proceed with the termination.

The judge noted that S was not required to be 100% certain of her decision to terminate her pregnancy, but that she had ‘enough pieces of the jigsaw to see the whole picture’. In fact, it was said that S fact was not certain, was evidence of her understanding the severity of the matter in issue.

This was clearly a difficult case given the sensitive nature of the topic. S had historically made her intentions to have children clear and had gone to the extent and costs of undergoing IVF treatment.

Interestingly, S’s solicitors put forward that, although the court was to decide whether S had capacity to consent to a termination, she had capacity to conduct proceedings without the use of a litigation friend.

As the judge decided that S had capacity, this was not considered further. However, it raises an interesting topic.

‘Litigation capacity’ and ‘subject-matter capacity

What is the difference between ‘litigation capacity’ and ‘subject-matter capacity’?

Essentially, ‘litigation capacity’ is a person having capacity to instruct solicitors themselves rather than through a ‘litigation friend’.

‘Subject-matter capacity’ is a person having the capacity to make the decision which forms the basis of the proceedings.

It does seem that there is an inherent contradiction to have capacity to make one decision and not the other. However, this issue has been discussed in Property and Financial Affairs cases too. In London Borough of Islington v QR [2014] EWCOP 26 it was decided that P had litigation capacity (to conduct proceedings) but did not have subject capacity (i.e. if she was able to decide whether or not she should surrender her council flat tenancy in order to live in supported living accommodation).

However, the Court of Protection warned that having capacity to litigate but not having capacity to make the decision in question would be the case only in ‘unusual circumstances’ and in the case above, the judge had extensive knowledge of the case and parties to be able to come to their decision.

Ultimately, the decision as to whether P has either litigation or subject-matter capacity will be based on medical evidence supplied to the court.

Even so, the case is a great reminder of the importance to bear in mind that in contested Court of Protection cases where capacity is being questioned, it is essential to:

  1. identify each decision that needs to be made by P; and
  2. apply the Mental Capacity Act 2005 to each of those decisions separately.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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