This blog post
Bipolar patient has capacity to decide to terminate pregnancy
about this judgment of the Court of Protection
SB (A Patient; Capacity To Consent To Termination), Re  EWHC 1417 (COP) (21 May 2013)
has set me thinking.
. . .
A tense, life-or-death, courtroom drama
Pitched against her own legal team, the mental patient, Mrs SB, had two psychiatrists, her mother, her father, her husband (presumably the baby’s father) and the NHS hospital in which she was sectioned, along with their various solicitors and barristers, all agreeing that she was “not thinking straight”.
Her baby was not legally represented in court. As the nice judge said, “the foetus has no independent rights which fall to be weighed or considered by me at all in these proceedings”.
Present (though hardly as a disinterested, mere spectator), was the enterprising would-be sub-contractor who had put in a last-minute bid to do the job, less than a week before the mother reached 24 weeks pregnant, and the baby’s life would have become untouchable. “A doctor employed by a well known body”, is how the judge described this potential beneficiary of the judge’s own hard day’s work, when the abortionist put in his own “hard day at the orifice”.
At 23 and a bit weeks, the foetus could perhaps be delivered alive, and would stand a chance of surviving. The slower the wheels of justice ground, the better the foetus’ chances of making it. But the court wasn’t “Thinking outside the botch” today. Nothing but death would suffice, for some reason. That was what was stipulated in the abortionist’s – er – contract.
The case would therefore need to be decided quickly. There was robust justice to be done. The judge didn’t start delivering his judgment until 8 o’clock in the evening. What a hero. Tomorrow might have been too late. They still had to find a second doctor to sign the death warrant, and time was running out. What if not even the “well-known body” could come up with a second signatory, who knew how to “weigh” stuff that “fell to be considered”?
Here is the gist of the UK Human Rights blog post’s summary of the court’s judgment:
The patient … was a 37 year old highly intelligent graduate… 8 years she presented with symptoms … of bi-polar disorder. She had been detained … at various times … These proceedings were issued … because the mother concerned was “very strongly” requesting a termination … It was clear from the patient’s own evidence that she herself did want a baby at the time that she conceived it. But after the first trimester had elapsed, in April, she started to show signs of her disorder and there was a “total reversal” in her attitude towards the baby …
The judge was prepared to take the unusual step of differing from the view of the psychiatrists that she would bitterly regret the termination. … The decision, with its risks of consequent regret, was one that the patient should be at liberty to take. The judge fully appreciated her situation, including the fact that she was currently compulsorily detained. … the Court … the judge has to consider whether the reasons for a decision are rational. This does not mean that they have to be good reasons, nor does the court have to agree with the patient’s decision…
A victory for the rights of mental patients
The good news is that the lady with “paranoia”, which the doctors said was the entire reason for her change of heart towards her baby, won the right to choose something, even though it wasn’t the right to choose whether to be in a mental hospital or not, which might have been more useful. And the abortionist was given his (shall we say?) weighty reason to grin like a Cheshire cat all the way home. So, the foetus’ will not have died in vain, if that is what did happen to him or her. His sacrifice has struck a blow in the long struggle for equality of mental patients.
But why this case?
Didn’t bringing this case, in this situation as it was, when the objective was to protect the patient’s mental health from Post-Abortion Syndrome kicking in as soon as her Bipolar Disorder got better, amount to putting the cart before the horse, so to speak?
The question before the court was whether the patient had mental capacity to “request” an abortion. If we had abortion on demand in the UK, whether an abortion had been “requested” would be an important question, since any mother who requested an abortion, would be likely to have an abortion, just because she had requested it. But, under UK law, the patient having requested abortion is an irrelevant consideration. The patient’s request is not one of the tests to apply, under the Abortion Act, in determining whether an abortion would not after all be a criminal offence. First, the question has to be answered by doctors, whether there are medical grounds for abortion. Then the question has to be asked whether the mother consents to the abortion procedure. The Abortion Act doesn’t mention “requesting” at all.
As evidence of the patient’s capacity to make the irrelevant “request”, the patient showed that she had a rational reason for requesting an abortion, namely not wanting to bring up her unborn child herself after he or she had been born. But this was not a reason that two doctors “acting in good faith” could possibly take into consideration, when both forming one of the necessary medical opinions set out in section 1(1) of the Abortion Act, the statutory criteria for medical abortions to be lawful. In the UK, an abortion is not made legal merely by a mother not wanting to bring up her child, thank God.
To put the horse before the cart, as one should, the patient could have simply asked her two psychiatrists to form the opinion in good faith that (to quote the Act) “the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to her mental health”. (This was the ground for 97.9% of the legal abortions in England and Wales during 2011.) Who better to ask? If they formed that opinion in good faith, then, and only then, the only important mental capacity question would arise, the question as to whether the patient had mental capacity to consent herself to the abortion procedure itself.
What is really going on here?
What this case seems to be about, is what I will call opinion shopping, an ethically dubious activity which I nevertheless suspect has become an everyday occurrence throughout the length and breadth of the land. I would even go so far as to say that the word on the streets is that if woman goes to this rather than that “well known body”, then they might even have stocks of forms ready-completed and pre-signed with the very opinion she wants to buy, on which her name can simply be penned in.
Mentally ill woman (or woman who is willing to play the “mental health card” deceitfully) wants abortion. Psychiatrists (and who better to know?), say (or would say, if asked) that their medical opinion, formed in good faith, is that continuance of the pregnancy does not involve risk, greater than if the pregnancy were terminated, of injury to her mental health, perhaps even the very opposite. But that is not what woman wants to hear.
Woman wants instead to shop around for the opinion she wants to hear, amongst doctors known to be more enthusiastic than psychiatrists are likely to be about abortion, since psychiatrists see the ill-effects on mental health outcomes (or at least the lack of beneficial effects). Woman wants to keep trying other pairs of doctors, until she finds a pair of doctors only too glad to pander to her wishes. Doctors who are not psychiatrists, experts in predicting mental health outcomes. Abortionists, who stand to gain financially from saying “in good faith” what psychiatrists might not be willing to say, in order to give a semblance of legality to about 97.9% of legal abortions, if the figures for England and Wales in 2011 are typical.
Woman wants to see if she can persuade one of these other pairs of doctors, less well-placed to comment on the risks to her mental health than her psychiatrists, to say that the opinion of psychiatrists is wrong. She wants them to form “in good faith” the exact opposite of the opinion of the best qualified experts; namely that continuance of pregnancy DOES involve risk, greater than if the pregnancy were terminated, of injury to woman’s mental health.
That seems to be an opinion elicited “in good faith” easily enough from most abortionists, on the part of any mentally ill woman who wants an abortion, or any woman who merely pretends to be mentally ill to trick the abortionists into forming “in good faith” the opinions of which they need a steady stream anyway, just in order to provide 97.9% of the abortion industry’s income, and thus keep their jobs.
See also the post “Giving evolution a helping hand“, on this blog, for more thoughts about “psychiatric” abortions that psychiatrists do or would oppose, but which abortionists gladly approve willy nilly, in the name of dubious better mental health outcomes for those who provide their bread and butter.