This case had previously been before the courts during AB’s pregnancy when, at first instance before Lieven J, the Trust successfully applied, for a declaration that it would be in AB’s best interests for her pregnancy to be terminated. The Court of Appeal allowed an appeal against that decision and set aside the declaration.
At a subsequent hearing, Mostyn J found that it would be in AB’s best interests to deliver the baby via caesarean section. The case then came before the MacDonald J when AB was 38 weeks’ pregnant when the Trust applied for a declaration that it would be in AB’s best interests to have an intrauterine contraceptive device (IUD) fitted while undergoing the caesarean section.
AB was a 25 year old woman with moderate learning disabilities whose pregnancy was unplanned. She had been assessed as lacking capacity to consent to sexual intercourse and the local authority had engaged in supporting AB through her pregnancy. It was not disputed that ‘presently’ AB lacked capacity to make decisions regarding contraception.
No-one could ascertain the circumstances in which AB had become pregnant. It was reasonably believed that AB had become pregnant during a trip to Nigeria to visit her grandmother’s grave. AB’s adoptive mother, CD, had been with AB during part of her trip and AB’s maternal aunts had been with her at other times. The police investigation could not progress as Nigeria was outside its jurisdiction. Prior to her pregnancy AB had not wanted to become pregnant. Although AB was now said to be excited and happy about the prospect of having a baby, during a ‘dry run’ of the caesarean section, she had become distressed.
At the outset of the proceedings both the local authority and the Official Solicitor contended that the risk of a further unplanned pregnancy for AB was nil, negating the necessity for contraception at this stage and they each opposed the application by the Trust. CD did not attend the hearing but had objected at previous hearings (due to her fear of the risk of infection when IUD inserted at/near time of birth). Conflicting live evidence was heard as to the extent to which AB may better participate in decision-making with further education and support and/or possibly regain capacity. The majority of that evidence was clear though that further work would not result in an improvement in AB’s ability to participate in decision-making.
The local authority’s support plan aimed at safeguarding AB from the risk of an unplanned pregnancy was relied on by the local authority and the Official Solicitor as the basis for assessing AB’s risk of a future unplanned pregnancy as nil. The plan was that she would not be left alone at home or unsupervised with a male; she would be accompanied in the community; she would be with D, a trusted family member or a support worker at all times; there would be weekly visits to the family home by a SW to ‘check to ensure the risk management plan [was] complied with’.
The local authority and Official solicitor’s opposition softened on hearing the medical evidence to the extent that neither actively opposed the Trust’s application but did not consent to it.MacDonald J noted that the care plan identified the very people who were charged with safeguarding AB as looking after her to prevent a further unplanned pregnancy. He found impact of a further unplanned pregnancy was grave and the risk of it happening could not be eliminated. It was therefore in the best interests of AB to have fitted an IUD at the same time as she underwent a caesarean section. The necessary declarations were made.
The principle that the court should endeavour to achieve the least restrictive option was significant in MacDonald J’s reasoning: in his view, as a means of protecting AB from future pregnancy, the painless insertion of the IUD was far less restrictive than the alternative of 24-hour intensive supervision under the safeguarding plan.
Lieven J’s judgment that there should be a termination is on bailii: An NHS Foundation Trust v AB & Ors  EWCOP 26 (21 June 2019)
The Court of Appeal’s judgment overturning Lieven J’s decision is on bailii: AB (Termination of Pregnancy), Re  EWCA Civ 1215 (11 July 2019)