Court of Protection Update

It has been two months since the last edition of this newsletter and the last update. As we wait with bated breath for Judgment in the Supreme Court’s sequel to Cheshire West in The Reference by the Attorney General for Northern Ireland (UKSC/2025/0042), those interested can find the parties’ written cases and a recording of the hearing here: https://www.supremecourt.uk/cases/uksc-2025-0042.

In the meantime, the Court of Protection has not been quiet and Re KP (Termination of Pregnancy) [2025] EWCOP 35 (T3) brings judgment from Poole J in what is a complex and difficult case even by the standards of the Court of Protection.

Re KP (Termination of Pregnancy) [2025] EWCOP 35 (T3)

KP is described by Poole J as an intelligent 19-year-old who, at the time of the hearing was 17 weeks pregnant. It is recorded that she has experienced very many challenges in her life. That may well be considered an understatement:

4. KP suffered hypoxia at her birth in 2006 leading to an acquired brain injury. She has been diagnosed as having cerebral palsy. She was adopted as a child but in 2019 the adoption broke down and she was taken into the care of the local authority. She then had a series of 22 placements, presenting as dysregulated with challenging behaviours including self-harm by cutting, ligatures and overdoses. In 2024 a psychiatrist concluded that she had traits of Borderline Personality Disorder. Later that year she was diagnosed with Autism Spectrum Disorder. KP has not been diagnosed with Dissociative Identity Disorder (previously known as Multiple Personality Disorder) but she is known to have adopted a number of different personas. These personas or identities inhabit her. They have names and she lives as them for varying lengths of time. In 2024, her persona was that of a three year old girl. She stopped eating, drank from a baby's bottle, and required a pacifier to calm her. Currently she has the persona of a 13 year old girl, as explained below.

The court had to consider whether KP has capacity to decide whether to terminate her pregnancy, and to consent to a contraceptive implant being inserted under her skin. If she lacks capacity in relation to either, or both, of the above, the court had to decide what was in her best interests.

KP resided in a residential placement and earlier this year, had been ‘particularly well’ for a period of time. In or around April 2025 it was determined that it should be presumed that KP had capacity to engage in sexual relations. She met a man (CD) online and he had visited her in person. She formed a relationship with him and KP assured staff that she was not engaging in vaginal intercourse and so did not require contraception. As it transpired, they were engaging in vaginal intercourse and KP became pregnant and subsequently tested positive in July 2025. It was confirmed on 24 July 2025, that she was 7 weeks pregnant.

She was initially positive about the pregnancy and was supported by CD who was likewise positive about the prospect of having a child. It was thought feasible by her current placement and the newly appointed social worker for the baby, that KP could care for the child at the placement. Unfortunately, from there, the situation for KP unravelled.

8. Then, in early August 2025, KP experienced light vaginal bleeding (spotting) and became convinced that she had miscarried. She funded a further scan which showed a foetal heartbeat but KP struggled to accept that it belonged to the baby. She does now accept that she is carrying a live baby but she is clear that she wishes to have a termination of the pregnancy. She first asked for a termination on 8 August 2025.

9. The experience of spotting and belief that she had miscarried appears to have triggered a significant deterioration in KP's mental health as well as a change in her stated wishes and feelings about continuing the pregnancy. Following the spotting and belief that she had miscarried, KP's persona became that of a 13 year old girl. She remains in that persona. KP has said that "a child cannot have a child" as a reason why she cannot continue the pregnancy. She believes that her child will be removed from her and taken into the care system which, given her own experiences in care, causes her great distress. She very much wants to avoid that happening. She has claimed to have tried to terminate the pregnancy herself by insertion of a coat hanger. This was not witnessed but blood was seen on her bedsheets. She says that her internet research has taught her that she could bring about a termination by taking a large quantity of a certain kind of over-the-counter medication. She has cut her abdomen. Incidents of self-harm and staff interventions have markedly escalated. She has expressed deep frustration that her wish to have a termination is not being followed.

10. Although it was rapid, KP's deterioration was not immediate. For a short while she appears to have had some insight that she was deteriorating and asked Ms B to stick by her and not to allow her to make unwise decisions. She reported that she had miscarried, without others knowing, when she was only 12 after being sexually abused. I should note that the Family Court has previously found allegations made by KP in relation to sexual and other abuse not to be proved. However, this recalled experience seems to have contributed to her deterioration and the adoption of the 13 year old persona.

11. Sadly, the therapeutic approach taken by Ms B's organisation has now had to give way to a more restrictive regime, authorised by the Court of Protection. She has constant 2:1 care with a third carer on standby in case they are needed during any period of severe dysregulation.

On a positive note, KP continued to receive support which those working in this field may sadly consider to be less common than we would hope.

18. Ms B told me that KP still has some contact with her adoptive mother who is broadly supportive of her current choice to have the pregnancy terminated. CD maintains a relationship with KP. He has no impairments, works, and is clearly capable of making decisions for himself. Whilst he was supportive of KP's initial wish to continue the pregnancy he is now supportive of her decision to terminate it because he thinks that continuation of the pregnancy is harmful to her mental health.

There were then concerns raised from a number of corners about KP’s capacity, and legitimate concerns about the potential impact on the relationship between KP and her treating team if she were or were not to have a termination of her pregnancy. The application was then made to the Court of Protection. A part of that application the solicitor instructed by the OS on behalf of KP prepared an attendance note which gave insight into KP’s own position in the application.

19. I have been provided with a very helpful attendance note by Ms Burridge-Todd, a solicitor instructed to represent KP in the COP welfare proceedings, who saw KP on 23 September 2025 to discuss the decisions before this Court. KP was very clear that "I want the abortion. I've always wanted it ... it is pissing me off that I have had to wait for this, it should have been done weeks ago." She also stated that she wanted the contraception implant: "put it in when I am under." She said she had had an implant before. She described herself as "loud, gobby, opinionated and hilarious." She said, "I don't mind others making decisions for me, so long as they have my best interests at heart. They can't be snowflakes about it. I am sick of that game." She seemed to blame a lack of restrictions for her having become pregnant and now to want more restrictions to keep her safe. KP was sure that she did not want to speak to the judge hearing her case.

As a helpful reminder:

21. Capacity to decide whether to terminate a pregnancy has been considered on more than one occasion. Munby J held in Re X (A Child) EWHC 1871 (Fam):

"[6] In a case such as this there are ultimately two questions. The first, which is for the doctors, not this court, is whether the conditions in section 1 of the 1967 [Abortion] Act are satisfied. If they are not, then that is that: the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful. If, on the other hand, the conditions of section 1 of the 1967 Act are satisfied, then the role of the court is to supply, on behalf of the mother, the consent which, as in the case of any other medical or surgical procedure, is a pre-requisite to the lawful performance of the procedure. In relation to this issue the ultimate determinant .... is the mother's best interests.

[7] .... Two things flow from [the fact that the statutory conditions for a lawful termination are met]. In the first place this court can proceed on the basis (sections 1(1)(a) and (c)) that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or (section 1(1)(b)) that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of these conditions is satisfied the court is already at a position where, on the face of it, the interests of the mother may well be best served by the court authorising termination."

22. In S v Birmingham Women's and Children's NHS Trust and Another [2022] EWCOP 10, HHJ Hilder, sitting as a Deputy High Court Judge, identified the information relevant to a decision to terminate pregnancy as being:

"[52] ... (a) what the termination procedures involve for S ('what it is');

(b) the effect of the termination procedure/the finality of the event ('what it does')

(d) the possibility of safeguarding measures in the event of a live birth."

The last piece of information is directed to the possibility of public authorities taking safeguarding measures to protect the newborn child. HHJ Hilder was concerned with the specific case before her. For the purpose of the case before me I would add, "the risks to KP's physical and mental health from continuing the pregnancy (what deciding not to do it risks)."

The parties agreed that KP lacked capacity to make the decision to terminate the pregnancy and whether to have a contraceptive implant. The Applicant Trust maintained that KP’s own wishes and feelings had weight, those interested in her welfare agree with her, and therefore it was in her best interests to have the termination.

On behalf of KP, the OS considered “with trepidation”, it was not in her best interests to have the pregnancy terminated. This position was reached having considered that when healthy KP was positive about having the child, and as her mental health deteriorated she had asked to be protected from making unwise decisions; when she recovers her mental health she is likely to retrospectively consider termination to have been unwise and that would further harm her mental health and jeopardise her trust in her current placement.

Poole J did not accept at face value that KP lacked capacity in the relevant domains.

29. The Applicant Trust and the Official Solicitor both contend that KP lacks capacity to make the decision to terminate her pregnancy and to have a contraceptive implant. I agree. This is a difficult issue and I do not intend to criticise Dr A's written assessment but it was only after hearing the oral evidence from her and Ms B that I was persuaded that KP lacks capacity in relation to these decisions. Dr A's written assessment was less compelling: she referred to KP's inability to understand and weigh up "decisions" rather than the information relevant to the decisions. She referred to an inability to retain information because of a possible change in persona by the time the termination procedure was commenced. However, a change of persona might lead to a change of decision rather than an inability to retain the information relevant to that decision. Nevertheless, having heard Dr A and Ms B give evidence, it is clear that KP cannot understand, or weigh or use, information about the reasonably foreseeable consequences of deciding to undergo termination of pregnancy or deciding not to do so. Information relevant to the decision regarding termination of a pregnancy includes information about what termination risks, and what continuation of the pregnancy risks. KP cannot understand information about the potential impact of termination (or of continuation of the pregnancy) on her mental health. She cannot understand that she might feel differently in the future about the decision than she does now or that the consequences of her decision might include a negative impact on her mental health. That inability is related to her changing personas. When in the grip of a particular persona she cannot foresee a change in persona and therefore cannot understand how, in a different persona or without any adopted persona, she will view or experience the outcome of a decision made earlier. For the same reason she cannot weigh or use such relevant information. A decision to terminate a pregnancy or to continue necessarily has long term consequences and so the relevant information includes information about those consequences. The same is true, albeit to a lesser extent, of the decision about contraception. No amount of support is capable of helping KP understand and weigh or use this relevant information. Her inability is because of an impairment of or a disturbance in the functioning of her mind or brain.

30. The evidence of both witnesses established that KP had prepared hard for her capacity assessment with Dr A. She was determined to be found to be capacitous. She had carried out research and she had prepared answers. She is capable of retaining relevant information once she has understood it, at least for a sufficient period to enable her to make a decision. She stuck to her script and said to staff afterwards words to the effect that it was exhausting to do so. She was able to repeat information about the mechanics of termination but not about the impact on her of termination or of continuation of the pregnancy. Having heard the evidence of Ms B it is obvious that Dr A's perception that KP was defensive and giving only the shortest answers, was due to KP having prepared certain answers with a view to "passing" her capacity assessment, and then rigidly sticking to them throughout. As Dr A experienced, KP was unable to engage when asked about relevant information that she had not prepared for.

31. I conclude that at this time KP lacks capacity to make decisions about termination of pregnancy.

32. I conclude similarly in relation to the provision of contraception. KP can explain the mechanics and retain such information. She cannot however understand, or weigh or use, information about the reasonable consequences of deciding to have or not to have contraception. That is because of her current inability to comprehend the consequences of the decision in future times when she might have a different or no adopted persona.

That being said, it fell to Poole J to consider what was in KP’s best interests. A decision with significant complexities, in particular as to the relative weight which ought to be given upon KP’s wishes and feelings past and present, and as the OS invited the court to consider, her possible future wishes and feelings. That task being made perhaps even more difficult given KP’s various personas which will no doubt effect her wishes and feelings at any given time. It is worth setting out parts of the judgment and I do so below. For those who would rather skip to the end, Poole J ultimately considered that it was lawful for KP to undergo a surgical termination of her pregnancy and to have a contraceptive implant inserted.

34. I know that Dr A and the clinicians at the Trust whose care KP is under, support the proposal for a termination. Her adoptive mother and her boyfriend, who is the father of the unborn baby, also support the proposal for termination. Their main shared concern is the adverse impact on KP's mental health from the continuing pregnancy.

35. KP is suffering a mental health crisis as demonstrated by her escalating self-harm and dysregulation. She has long suffered from mental health challenges but, having demonstrated an improvement, she has more recently deteriorated during the pregnancy. On the evidence received there is no prospect of a sudden or marked improvement whilst she remains pregnant. That is not to say that she is likely to improve immediately upon termination of the pregnancy, but it is foreseeable that so long as she remains pregnant her mental health will continue to be poor and may well deteriorate further.

36. Her current mental health state puts her at risk of physical harm. The evidence is that she has harmed herself due to the pregnancy. On the balance of probabilities, whether in a genuine attempt to produce a termination or not, she has inserted something into herself causing bleeding. She has cut her abdomen. She is distressed by not having her wishes to undergo termination respected. I was told by Ms B that KP has recently reported feeling the baby's movements and that this has added to her distress. As the pregnancy continues the physical impacts of it on KP will only become more evident to her and, in all likelihood, more distressing.

37. I have to contemplate the prospect of KP's pregnancy going to term, or almost to term, and her delivering a child. In her present mental state and given her present adamant wish to terminate the pregnancy and her distress that her wishes are not being respected, that is a very troubling prospect. A decision that it is not in her best interests to undergo a termination of pregnancy is a decision to continue the pregnancy. If a further application were made for a decision to terminate at a later stage in the pregnancy, that would have to be on the basis that KP had suffered even greater harm that she has suffered to date. The termination of pregnancy would be more problematic at a later stage and after 24 weeks termination would only be lawful if necessary to prevent grave permanent injury to KP. In the absence of any change rendering a later termination lawful and in KP's best interests, it is likely that KP would eventually give birth either by elective Caesarean section or after going into labour. Thus, one foreseeable consequence of overriding KP's present wishes would be to authorise - she and others might say to force - a mother against her will to carry a child for a further 20 weeks or so and then to give birth. A very strong justification would be required for such a significant interference with KP's Convention rights.

38. A termination would prevent further physical harm to KP caused by self-harm due to her unwanted pregnant state and/or attempts to self-induce a termination of pregnancy. There is a real risk of such physical harm occurring. It has already begun. As the pregnancy continues the risks of severe bleeding or other forms of harm from KP's own interventions will only increase. There is a real risk that KP could harm the baby by her attempts to induce a termination. If KP were to harm the baby then that in itself could have a severe adverse effect on her mental health both in the short and longer term.

39. In her current mental state KP could not look after a new born baby. As noted, there are no grounds to expect that her mental state will improve whilst she remains pregnant. 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.

40. Set against these considerations is the concern, articulated on behalf of the Official Solicitor, that it would be contrary to KP's best interests to terminate a pregnancy which, when she was not mentally unwell, she wanted to continue. There is a prospect of her regaining capacity in the future and being distraught that her wish to continue the pregnancy had not been followed. Her currently stated wishes must be treated with great caution since she is currently incapacitous and adopting the persona of a 13 year old girl rather than speaking for her 19 year old self, as previously she did. This was the concern expressed by Ms B at the MDT meeting on 28 August 2025 (paragraph 16 above).

41. This is not an easy issue but in my judgement these concerns, whilst relevant to the best interests analysis, do not justify the weight the Official Solicitor has given them:

i) KP was keen on continuing the pregnancy only for about 17 days. The pregnancy was confirmed on 22 July 2025 and by 8 August she stated she wanted to terminate the pregnancy. The pregnancy was not planned and there was no indication prior to 22 July 2025 that KP wanted to become pregnant and have a baby. Her positive view of the pregnancy was short-lived. It cannot be said to have been deeply or long held.

ii) I have determined that KP now lacks capacity to make a decision on termination of her pregnancy but it is not clear to me (a) that when KP discovered she was pregnant and for 17 days thereafter, she did have capacity, nor (b) that she had lost capacity by the time she first stated she wanted a termination on 8 August 2025. Her capacity to make such a decision was not assessed at those times. The most recent assessments by Dr Rippon had concluded that she continued to lack capacity to make decisions about her residence and care. Those are very different decisions and I accept that a person is presumed to have capacity unless otherwise established, but the ebbs and flows of KP's mental health make it difficult to know what information relevant to termination of pregnancy she understood or could weigh or use before and at the time she changed her view about termination. In the transcript of the MDT meeting on 28 August 2025 it is recorded that KP had been assessed as having capacity to consent to an ante-natal scan on 27 August 2025. There was considerable uncertainty amongst professionals as to whether she did or did not have capacity to make a decision on termination of her pregnancy. Dr A's assessment was on 12 September by which time her mental health had deteriorated further. Hence, KP might have had capacity to decide to undergo a termination of her pregnancy over a month earlier on 8 August when she said she wanted a termination.

iii) Ms B's insights about KP lead me to conclude that KP adopts personas as a way of avoiding taking responsibility for her own actions and decisions when in great difficulty or crisis. It is a response to past trauma. It appears that her fear of having miscarried triggered the adoption of the persona of a 13 year old girl. This happened to be about the age she was when she recalls having previously miscarried after having been sexually abused. She now tells Ms B that she wishes her freedom to be restricted and to be treated as a child. The adoption of a child's persona frees KP from facing issues and making difficult, adult decisions. After her initial enthusiasm for the pregnancy she may well have become overwhelmed by the responsibilities the pregnancy brought with it. The persona of a 13 year old frees her real self from having to make a decision about termination. Someone else has to make that decision. It does not follow that her real self did want to continue the pregnancy or that what the 13 year old persona is telling us does not correspond with the real 19 year old KP's wishes and feelings.

iv) It would not have been irrational for KP to change her mind about termination of pregnancy as her mental health declined. She might have felt capable of continuing the pregnancy and looking after a baby when well but later, when she deteriorated, realised that she was not well enough to do so.

v) I accept that the Court should not assume that the "real KP" would now choose termination. But, neither can it be a safe assumption that the "real KP", unburdened with the adoption of a persona or different identity, would now choose to continue the pregnancy.

vi) It is rather speculative to assume that upon an improvement in her mental health, KP will return to the view she briefly held from 22 July to 8 August 2025. No-one can say when her current persona will cease to inhabit KP, whether she will then adopt another persona, or what that persona will be. No-one can say when her mental health will improve, let alone what view she will have about a termination as and when her mental health is better or when she is inhabited by another persona.

vii) I accept that it is possible that if KP undergoes a termination of pregnancy now, then at some point in the future she may deeply regret that it has happened. On the other hand, it is also possible that if KP does not undergo termination now, then in the future she may deeply regret that the pregnancy was allowed to continue. KP's present views and wishes are clear but her future views and wishes cannot reliably be predicted.

42. I have no evidence that KP holds beliefs or values that would be likely to influence her decision if she had capacity and which should be taken into account when considering her best interests. I am not aware of her practising any religion or holding any ethical beliefs opposing termination or contraception in principle.

43. The Court does not have the luxury of time - 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.

47. This is not a straightforward decision but having considered all the relevant circumstances, KP's past and present wishes and feelings, any views and values likely to influence her decision if she had capacity, and the views of those engaged in caring for her or interested in her welfare, I have decided that it is in KP's best interests for her termination of her pregnancy to be performed as soon as it can be arranged and in accordance with the care plan submitted by the Applicant Trust. Having analysed the relevant considerations I have concluded that particular weight should be given to protecting KP's current mental health. There is uncertainty as to what her longer term response to termination will be but there is certainty as to her current wishes and her current poor mental health to which her continuing pregnancy is clearly a very significant contributor. I am very concerned that KP would perceive any other decision as forcing her to continue an unwanted pregnancy. KP is a severely traumatised young woman and to compel her to continue her pregnancy and to give birth to a child against her will would be likely to cause further significant trauma. It is possible that she will respond very negatively to having had a termination but that cannot be reliably predicted. What is predictable is that her ongoing dysregulation and self-harm is likely to continue and worsen as the pregnancy continues.

In a postscript to the Judgment, it was confirmed that after the hearing and decision, but before publication of the judgment, KP underwent surgical termination of her pregnancy and insertion of contraceptive implant. This was completed without complication and physical restraint was not required.