Pregnant woman with learning difficulties 'free to make mistakes', says judge

Mr Justice Hedley, sitting in the Court of Protection in London, said so far as possible those with learning difficulties, including serious ones, must not be dressed “in forensic cotton wool” but allowed to make mistakes like everybody else.

The case came to court following concerns that the young woman, who cannot be identified, might lack capacity and it might be appropriate for the court to decide what was in her best interests.

The judge said she had been born with sickle cell disease, a lifelong genetic medical condition which resulted in her requiring regular medical treatment.

She had suffered a number of strokes which left her with learning difficulties and placed her in the bottom 1% of the population in terms of intellectual functioning.

Her family had sued over her treatment and she had received a substantial award in settlement of her damages claim.

Because of her disadvantages, she required deputies to act as administrators on her behalf. One deputy was her mother and the other a well-known firm of solicitors.

Towards the end of last year she discovered she was pregnant, and the matter was brought to the attention of the court.

The judge said she lived in the south of England with her mother and her sister and other members of her family, who provided a close, supportive network in which she functioned well.

She “manifestly lacked capacity” to participate in legal proceedings at the present time and required the assistance of the official solicitor to act as her “litigation friend”.

But that did not mean she lacked capacity to make profoundly important decisions in her private life.

The judge said it was now accepted by all parties and all witnesses in the case that she had capacity – “that being so, the Court of Protection has no jurisdiction to engage in an assessment of her best interests”.

In a short judgment with important general implications, the judge said people with learning difficulties were not to be treated under Britain's 2005 Mental Capacity Act as unable to make a decision merely to avoid them making “unwise decisions”.

The intention of the Act was not to dress them “in forensic cotton wool, but to allow them as far as possible to make the same mistakes other human beings not infrequently do”.

The judge said it was very important to bear in mind that people with severe learning difficulties who might not be unable to function independently in the community in other aspects of their lives “may very well retain the capacity to make deeply personal decisions about how they conduct their lives”.

These could include decisions about choice of partners, the extent of sexual activity, making permanent relationships “and decisions about their own medical care including, as in this case, the continuation or termination of pregnancy”.

The judge said questions that might be raised over the ability of the young woman to care for her child in the future were not relevant to the issue before the court today, which was whether she had capacity to decide whether or not to continue her pregnancy.

If the mother did not have the ability to care for the child that would be a matter for social services.

The judge added: “It is right to observe that both expert and professional and family evidence in the case is it would be in her best interests to continue with the pregnancy, but that is outwith the jurisdiction of this court.”

There was a belief that the alleged father was known. It would not be right for the court to make any observations about that, said the judge.

Bethan Harris, who represented the young woman’s mother, said: “This is a very happy outcome for her. These proceedings have caused a considerable amount of anxiety.”