A nuanced approach to fluctuating mental capacity is important in Mental Capacity Act (MCA 2005) cases, highlighted in a recent Court of Protection judgement regarding the termination of a pregnancy.
In Re KP (Termination of Pregnancy) [2025] EWCOP 35, Mr Justice Poole was asked to determine whether KP, who was 17 weeks pregnant, had capacity to decide whether to continue or terminate her pregnancy and whether to consent to contraception. If not, the court had to decide what was in her best interests. In arriving at the decision to terminate the pregnancy, the case highlights the critical role of MCA 2005 and the Court of Protection.
KP history is marked by significant challenges. She suffered hypoxic brain injury at birth, has cerebral palsy, traits of borderline personality disorder, autism spectrum disorder, and a pattern of adopting childlike personas during crises. Initially positive about her pregnancy, KP’s mental health deteriorated sharply after a scare in August when she believed she had miscarried. She then expressed a strong wish for termination, attempted self-harm, and made dangerous efforts to self-induce abortion. Medical professionals agreed that termination would be lawful under the Abortion Act 1967, but the central question was whether KP could make this decision herself.
Mr Justice Poole notes at the outset any decision under the Mental Capacity Act 2005 concerned the welfare and best interests of KP only; the interests of the unborn child or any future potential children are not matters which the Court can consider.
Acting for KP, the Official Solicitor opposed termination, arguing KP might later regret the decision, undermining trust in her care team. Her earlier wish to continue the pregnancy should carry weight.
The application, Newcastle upon Tyne Hospitals NHS Foundation Trust stressed the risks of continuing pregnancy: escalating self-harm, attempts at unsafe abortion, and foreseeable deterioration in mental health. KP’s adoptive mother and partner supported termination.
In coming to the decision the judge reiterated that capacity is decision-specific, citing A Local Authority v JB [2021] UKSC 52. Dr A, a consultant gynaecologist, found KP could repeat procedural details but could not understand or weigh the long-term consequences of termination versus continuation, particularly given her fluctuating personas. The court concluded KP lacked capacity for both decisions. Case law regarding the role of the court in consent, key information for termination decisions, and the medical, social, and psychological welfare of the individual being at the centre of the decision was also cited.
Ultimately the Court of Protection concluded that KP’s current mental health crisis and clear wish for termination outweighed speculative future regret. Forcing her to continue pregnancy would be a “significant interference” with her rights under Articles 3 and 8 ECHR. She lacked mental capacity and lawfully and the decision to undergo a termination of pregnancy and receive a contraceptive implant was made.
Summing up the judge noted the fragility of KP’s mental state and her ability to care for the child.
“It seems to me likely that if the pregnancy were to result in a live birth, then the baby would be the subject of an interim care order and be removed from KP’s care. That is what she says she fears the most because she does not want to put another child through what she has gone through as a child in care. Having her baby removed from her would be highly detrimental to KP’s welfare and her mental health.”
Given the complications of termination after 24 weeks the judge also noted the court did not have the ‘luxury of time’ adding ‘there is no opportunity to wait and see if KP’s mental health improves or if she can regain capacity to make a decision about termination.’
In the postscript of the decision it is noted KP underwent surgical termination of her pregnancy and insertion of a contraceptive implant under her skin without complications.
