Bipolar sufferer had capacity to decide for herself on abortion

The Court of Protection is often called upon to decide whether a person suffering from a debilitating medical condition has the mental capacity to make important decisions.

A recent case involved a 37-year-old woman who suffered from bipolar disorder.

The woman was a high-achieving information technologist but her condition led to her compulsory detention at various times over an eight-year period.

She became pregnant and for the first few months she had shown every sign of wanting the baby, but then she stopped taking her medication and became unwell, showing signs of violence. She decided she wanted to have an abortion.

Five months into her pregnancy, she was detained under the Mental Health Act. As the pregnancy had lasted nearly 24 weeks, the hospital detaining her sought an urgent decision from the Court of Protection as to whether she had the capacity to decide for herself whether to go ahead with the abortion.

The hospital and the psychiatrist treating her thought that she lacked such capacity. They considered that giving up her medication had led to persecutory or paranoid beliefs, especially towards her husband and mother, and that her decision to have an abortion had arisen out of those flawed beliefs.

The Court of Protection accepted that the woman was mentally unwell. However, it ruled that she did have the capacity to make the decision for herself.

Even though she had some delusional thoughts about her husband, she gave many other reasons for wanting a termination. She said she was extremely unhappy in detention and did not want to have her child there. She saw no reason to have a child just to give it up for adoption. She was worried about her ability to bring up a child.

The court held that this showed that she was able to describe and genuinely hold some rational reasons, even if they were not necessarily good reasons.

The Mental Health Act provided that a person was not to be treated as unable to make a decision merely because they made an unwise decision.

Please contact Nigel Gibson-Birch or Josie Birnie about the issues raised in this article, or any matter relating to the Court of Protection and Lasting Powers of Attorney.