It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.
As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’
There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?
It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made.
In fact, said the court, the evidence from experts and the family was to the effect that continuation of the pregnancy would be in her best interests, but that, of course, was wholly academic. The way it is often put is that someone with capacity can lawfully make a decision in relation to their own life which is contrary to her ‘objective’ best interests. I’d prefer to say (since autonomy is an essential element of best interests, rather than something divorced from them) that the decision of a capacitous adult is definitive of her best interests.
The evidence about capacity seems to have been clear. And yet, since the judge, Hedley J, is Christian, some will no doubt mutter that his decision was motivated by a distaste for abortion. I have no idea of his personal view on abortion, but such mutterings would be very unfair. As well as being unfair on the facts of the case, the judge has a track record of impeccable objectivity.
But anyway, shouldn’t everyone have some sort of distaste for abortion? It’s no part of the responsible pro-choice case that abortions should be done blithely. We can discuss whether or not abortion is an evil, and, if it is, the metaphysical language in which to describe the evil, and, if it is an evil, whether or not it is a necessary evil. But no one serious pretends that having an abortion is like having a cup of tea.
Maternal autonomy is rightly at the centre of pro-choice arguments. No respecter of autonomy would like to think of this woman being forcibly anaesthetized and her pregnancy being terminated. If she really didn’t have the cognitive hardware necessary to understand what was at stake in pregnancy, and there were good evidence that continuation of pregnancy would not be in her best interests, then (subject to arguments about the Article 2 rights of the fetus), that might be different. But the physical and psychiatric insults necessarily involved in the forcible termination of pregnancy would not be easily outweighed by the insults necessarily involved in bringing the pregnancy to term.
Best interests determinations may have a long perspective, though. Suppose the evidence were that the woman, although able to decide to continue with the pregnancy, would not be able to care for the child, and that ultimately it would not be in the child’s best interests to be looked after by the woman. Then it might be said that one should factor into the determination of the best interests of the woman (in relation to the continuation of the pregnancy), the trauma caused by the inevitable removal of the child.
But here we are swimming in some very murky ethical and legal waters. Public policy prevents a child from coming to court and saying: ‘Were better my mother had not borne me.’: see McKay v Essex Area Health Authority [1982] QB 1166. A child, in other words, cannot legally unwish itself; cannot say that it would have been in its best interests to have been aborted. If that submission cannot be heard, can one logically, in performing the algebra of the mother’s own best interests determination, consider the child’s best interests at all?
She may have the capacity to keep or terminate a pregnancy but how about the child? Will she be helped with the upkeep of the child?
Ron: many thanks. Yes, there would be some support. The nature and extent of that support would depend on many factors.
You’ll see at the end of the post that one of the fascinating questions is whether your question is legally relevant.
Charles, when you say “I’d prefer to say (since autonomy is an essential element of best interests, rather than something divorced from them) that the decision of a capacitous adult is definitive of her best interests” I refer you to two rather good books by Charles Foster, one subtitled the Tyranny of Autonomy and the other on Human Dignity, that will soon change your mind.
Jonathan: many thanks! While I’m often woefully inconsistent, I don’t think that this is an example.
I was trying, very clumsily, to say that the law deals with incapacitous patients (to whom it applies the best interests test) in the same way as it deals with capacitous patients. Both are really best interests determinations. It’s just that a capacitous adult has sole jurisdiction over that determination. (There are, of course, some important exceptions to that rule – R v Brown, and so on – which point up its limitations. But they don’t apply to the context I’m addressing here). One would hope that this jurisdiction would be exercised in a way that respected other values, such as altruism, relationality, and so on. And indeed an objective determination of the best interests of a capacitous adult (just as the notionally objective determination of the best interests of an incapacitous adult, or a child) would give great weight to those other values. Autonomy, properly used, wouldn’t endorse selfishness. But in the case of a capacitous adult, the law won’t compel an individual to do what’s objectively in his best interests. We’re entitled to be miserable, selfish brats if we choose. But decent ethics will nudge us away from that conclusion, and decent law, by applauding altruism (etc) in other contexts, will do its (very limited) bit of nudging too.
Charles, I am not convinced that the way to see the law’s treatment of capacitous patients is to say that they alone have jurisdiction to determine what is in their best interests. My decision will be respected by the law even if I am saying “I know this decision is quite contrary to my best interests, but it is my decision”. The law respects the autonomous decision of a patient even if it is not objectively in their best interests and even if it does not constitute an subjective assessment by the individual of their own best interests.
Jonathan: thank you again. Very interesting. There are of course Brown type situations in which your construction is plainly right. As you know, I have argued that such situations in fact highlight a general rule – which is that all decisions of capacitous adults are in theory capable of being trumped by other considerations (notably those envisaged by Article 8(2), and which pertain to the individual’s definition as part of a social nexus). But the law’s not there yet, is it?
One of the reasons that I’m keen to contend that capacitous patients are dealt with by the courts using the same method of analysis as is applied to incapacitous patients is that, otherwise, the best interests jurisdiction over incapacitous patients looks morally dodgy – looks like an insupportable example of apartheid. Which in practice it isn’t. I’d like to hold onto best interests, and prevent the law from drifting further towards substituted judgment. My argument seems to help best interests to maintain their place.
Indeed. I am not thinking of the Brown case, but the altruistic person. Under under your approach the law says to the person “we take your decision as an assessment of your best interests” , but the persons says “but I did not make the decision based on best interests, but out of love for my child”. Why should the law assume everyone makes decisions based on their best interests? People don’t.
[Unless, perhaps, you take the kind of very broad understanding of best interests we discuss in our legal studies article, but the law is not there yet.]
No problem with substituted judgement. Can’t you just say that every case involves a balancing of autonomy and best interests, but where a person lacks capacity there are no autonomy interests in play.
Jonathan: many thanks. Yes, I’m talking here about best interests as per our article. I regarded that article as a plea for what the law should be, rather than as a statement of what the law is. Of course there are examples of the law saying that altruism = best interests (for instance in the case of bone marrow donation by a child to a sibling). But these are, at the moment, unusual, if not anomalous.
I think there are many problems with substituted judgment. Some of them are evidential. But others are more fundamental. Into which person’s mind is the court trying to think itself? Is it the person before they had the capacity-truncating illness? Is it the person with the capacity-truncating illness? And so on.
“Profound learning difficulties” and “…the bottom 1% of the population so far as intellectual function was concerned…” have radically different implications. Someone with an IQ of 60 is almost certainly incapable of managing their own affairs unassisted.
The key issue here is whether the woman can provide appropriate care for the child. If she is truly in the bottom 1% of intellectual function, it is excruciatingly clear that she will need substantial assistance to do so.
An outcome where she is left to fend for herself with an infant, can only lead to tragedy and a traumatized infant being taken away and placed with foster parents, while the woman herself is also traumatized by the forced separation.
Thus the court’s judgement should also have compelled the relevant agencies of government to provide whatever support might be needed: including a live-in nurse, or financial subsidies to relatives who would live with the woman as full-time support. If those types of assistance were not possible, then a mandatory adoption with visitation rights would be reasonable. Mandatory abortion would be a last-possible-case remedy undertaken only with the gravest reservations and in the absence of any other solution.
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