Pregnant women and the Court of Protection – when a pregnant woman changes her mind, does she lack capacity, and how do we know where her best interests lie?

Caroline Shields Head of Court of Protection Team Park Square Barristers

The decisions of pregnant women are always under scrutiny. But do cultural or political views about pregnant women give rise to excessive fears amongst treating professionals and the court that a woman with a mental health diagnosis cannot make the right decision about her pregnancy? This article considers case law where P is either anticipated to lose capacity during labour; or is considered to lack capacity to consent to a termination to understand whether the common features of such cases arise because the court is worried about the welfare of the child and/or because society considers the decisions of pregnant women are unreliable. These societal attitudes do not matter when the decision is minor but when the decision relates to a termination or a c-section the effect of making an unwise decision has an impact on wider family and importantly the foetus/unborn child. Is it for this reason that ‘pregnancy cases’ in the...