Articles and Case Studies

Termination of Pregnancy – A Question of Capacity

01 Jun 2017

sara bird

by Dr Sara Bird


Consider this case history. Fay, 19 years of age, was suffering from severe pre-eclampsia, with associated renal failure requiring haemodialysis.

She was 22 weeks pregnant and, despite six anti-hypertensive agents at high dosage, Fay’s blood pressure could not be controlled and her condition was deteriorating.

The treating team believed that Fay was at high risk of suffering a stroke or seizures, and there was a 10% chance of death if her pregnancy continued. They recommended a termination of pregnancy to enable effective control of her pre-eclampsia. Although her foetus had been progressing relatively normally, it would not survive birth.

Fay refused to accept the advice, and her mother agreed with this decision. Fay had an intellectual disability and the treating team were of the opinion that she did not have the requisite capacity to reject the termination of pregnancy.

Medico-legal issues

The hospital initially made an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) which could have permitted the termination of pregnancy to be performed. The treating Obstetrician and Renal Physician provided supporting evidence, along with a report by a Psychiatrist which concluded that Fay was unable to understand her medical condition and weigh up the various treatment choices. NCAT dismissed this application.

The hospital then made an application to the Supreme Court, under its parens patriae jurisdiction,1 that the termination of pregnancy could lawfully be performed by the hospital’s staff. The judge conducted an urgent hearing at Fay’s bedside on a Saturday morning. Evidence was given by Fay and her mother, who opposed the proposed treatment. Independent expert reports by an Obstetrician, Renal Physician and Psychiatrist were considered, in addition to reports by the treating Obstetrician and Renal Physician.

The judge concluded that Fay did not adequately understand, nor was she capable of balancing or making an informed decision to refuse the recommended termination of pregnancy. He also expressed concern about the influence of Fay’s mother on her decision-making. The decision was handed down late on the Saturday evening, when Fay’s condition worsened, allowing the termination of pregnancy.2


An adult is presumed to have the capacity to consent to, or refuse, any medical treatment unless or until that presumption is rebutted.

To demonstrate decision-making capacity, a person will be able to:

  • understand the facts of the situation
  • understand the main choices available
  • weigh up those choices, including benefits and risks
  • make and communicate the decision
  • understand the ramifications of the decision.


The “flip side” of the expectation that patients will provide consent for medical treatment is that there is no obligation on capable adult patients to undergo recommended treatment, even if that decision ultimately results in their death.

A question about capacity may arise when a patient refuses treatment which the treating team believes is in the patient’s best interests. Indeed, it is worth considering in this case whether the issue of Fay’s capacity would have arisen if she had consented to the termination of pregnancy.

Some commentators have suggested that the capacity to refuse a particular treatment may differ from that needed to consent to it, particularly where refusal involves a high risk and a low benefit, but the risks of treatment are low with a high probability of benefit.3

For more information on how to assess capacity, see the medico-legal pull-out feature “Assessment of Capacity” in MDA National’s Defence Update Spring/Summer 2015 (pages 9-12). 

Dr Sara Bird
Manager, Medico-legal and Advisory Services
MDA National


  1. The parens patriae jurisdiction is protective in nature and requires the Court to act in the manner of a wise, affectionate and careful parent for the welfare of those persons who cannot look after themselves.
  2. Application of a Local Health District: Re a Patient Fay [2016] NSWSC 624.
  3. Collier B, Coyne C, Sullivan K. Mental Capacity: Powers of Attorney and Advance Health Directives. Sydney: The Federation Press, 2005.
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