NA v LO [2021] NZFC 7685

Published 24 November 2021

Application for personal order — termination of pregnancy — surgical abortion — 20 weeks' gestation — Protection of Personal and Property Rights Act 1988, ss 6, 8 & 10 — Mental Capacity Act 2005 (UK), s 4 — United Nations Convention on the Rights of Persons with Disabilities, art 12 — X v Y (Mental Health: Sterilisation) [2004] 2 NZLR 847; (2004) 23 FRNZ 475 also reported as R v R [2004] NZFLR 797 — RLW v RL-JW FAM-2008-032-000991, 29 January 2009 — Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591. The applicant medical director applied to the Court for a personal order in respect of the subject person for a termination of pregnancy. The matter was heard under urgency as the subject person was 19 weeks and four days pregnant at the time of hearing, and surgical terminations could only be performed up until 20 weeks' gestation. This written decision followed the order granted at the date of hearing. The subject person's partner (and father of the child) was currently in prison on remand for assault against the subject person. The partner had a history of family violence incidents against the subject person. The subject person had another child who was currently in the care of the subject person's mother. The applicant submitted that the subject person did not have capacity to consent to a termination of pregnancy, and that her capacity to care for herself was seriously impaired. The subject person had initially sought a termination in April but had since changed her mind several times. In the interim period between her initial request for termination and the application before the Court, the subject person had been in and out of alcohol and drug support services and the women's refuge. The Judge heard evidence from five medical professionals and two social workers who had observed the subject person. The evidence was that the subject person had some degree of intellectual impairment, and that her decision-making ability had been compromised by her substance abuse problems. The Judge was satisfied based on the medical evidence that subject person did not have the capacity to consent to the termination, as she could not weigh up the outcomes of the decision. In determining what orders to make, the Court was also required to take into account the views of anyone the subject person said should be consulted and anyone interested in their welfare. The subject person's mother was unable to be contacted. The subject person's partner was of the view that the subject person should continue with the pregnancy; the times that the subject person had stated that she wished to continue with the pregnancy appeared to correlate to times she had been staying with her partner, prior to his arrest. Although it was important to take into consideration the partner's views, these were secondary to the welfare of the subject person. A Court should impose the least restrictive outcome in the circumstances. The Judge considered whether it was appropriate to wait until the subject person regained mental capacity, but noted this was unlikely to occur quickly and would necessitate the induction of labour which would be traumatic. Given the urgency and the medical evidence, the Judge granted the application and made a personal order that the subject person receive abortion services, if that were considered clinically and ethically appropriate by qualified health practitioners providing the abortion services. Judgment Date: 10 August 2021. * * * Note: names have been changed to comply with legal requirements. * * *