Abortion and the Mental Capacity Act: Right to Life Campaign

Thank you for contacting me about issues raised by recent court cases concerning a woman with learning disabilities who is pregnant. 

On how many abortions have been carried out in circumstances similar to those of the case you mention, a recent Parliamentary Question asked for the number of ‘best interests’ decisions relating to abortion in the last ten years and the Department said that the information was not collected centrally (PQ 269115 1 July 2019).

On the broader question of a policy or legislative response by Government to the issues, the Government's view is that a matter of such sensitivity and complexity needs to be addressed case by case and, where necessary, with the assistance of the courts.

Existing National Health Service guidance on the Mental Capacity Act 2005 (MCA), which is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment, is available on the NHS website at the following link:

https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/

The Mental Capacity Act is supported by an accompanying statutory Code of Practice, to which people making decisions under the Act must have regard. The Code provides guidance to anyone working with and or caring for adults who may lack capacity to make particular decisions. The Code of Practice is available on the GOV.UK website at the following link:

https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

The Court of Protection hears cases about some of the most vulnerable people in society, making decisions about personal welfare – including serious medical treatment - where the person lacks capacity to do so for themselves. In doing so it must follow the principles of the Mental Capacity Act. In particular the MCA stipulates that decisions must be in the person’s best interests, taking into account all the circumstances of the case, including the wishes, feelings, beliefs and values of the person, and must be the least restrictive of their rights and freedoms.

The Government's view is that it is right that such serious and difficult decisions – particularly where there is disagreement about what is in the person’s best interests - are made by the independent judiciary.

The statutory MCA Code of Practice provides practical guidance on the operation of the MCA and is currently under review. Ministers have sought input from a range of interested stakeholders through a call for evidence in January and propose to consult on a revised Code towards the end of this year.

Thank you again for taking the time to contact me.

Craig Whittaker MP

July 2019