When may an adult woman with cognitive impairment still have capacity to consent to an abortion?

All Australian jurisdictions have now decriminalised access to abortion care.1,2,3,4,5,6,7,8 This has been a critical step towards ensuring women's reproductive freedom and has only been achieved nationally with final legislation commencing in Western Australia in March 2024.9 A person can access abortion care provided all legislative and procedural requirements are met and they give informed consent. Consent requires capacity to make the decision and that it is given voluntarily, without coercion or undue influence. As with other medical procedures, medical practitioners who perform abortions without lawful consent may be subject to civil or criminal actions for assault or disciplinary proceedings.10

Complexities arise when people with cognitive impairment — whether associated with intellectual disability, acquired brain injury or mental illness — request an abortion. In this article, we examine the limited number of recent cases in Australia on legal capacity to consent to an abortion for adult women, distilling key factors to consider. No cases were found relating to people seeking abortion care identifying other than as women, and the language we use reflects this.

Legal capacity to consent

When it is uncertain whether a woman has capacity to consent to an abortion or termination of pregnancy (we use the terms interchangeably), the usual legal pathway is to apply under guardianship or health care decision‐making legislation to an administrative tribunal for a determination on capacity and request the tribunal's consent to perform the procedure. This is the process to be followed whether or not the woman is already subject to a guardianship order (Box 1). This article is limited in focus on the important issue of capacity, and not on the procedure for obtaining consent for a termination from the tribunal.

Capacity is always presumed, so incapacity must be proven.10 To assess capacity, legislation mostly adopts a functional test, which focuses on the process of decision making, that is, whether an adult can sufficiently understand the decision they are making and communicate their decision in some way.11 This test is intended to avoid determining capacity based on whether the decision is considered by others to be wise, reasonable or ethical, although commentators note that sometimes reasonableness considerations can impinge.12

In WA, the guardianship legislation expressly provides that to have capacity, a person must be able to make “reasonable judgements”.13 However, in case C, the relevant tribunal imported the functional test to complement the test of reasonableness (Box 2).14

Capacity tests are also time‐ and decision‐specific.10 If a woman will soon regain capacity, then medical practitioners must wait until that time so that she can make the abortion decision herself. However, delaying decisions may be problematic, given that, as the pregnancy progresses, there may be additional legislative (and sometimes procedural) requirements and increased clinical complexity.15

Finally, guardianship legislation in Queensland, Victoria, Tasmania, the Northern Territory and the Australian Capital Territory (Box 1) either mandates or encourages providing supports for people to exercise legal capacity and make their own decisions.16

The cases

To explore how cognitive impairments affect a woman's capacity to consent to termination of pregnancy, we searched for relevant cases using the Australian Legal Information Institute and administrative tribunal databases. We identified only five decisions after the decriminalisation of access to abortion care (Box 3). This may not be the total number of decisions made because tribunals publish decisions discretionally, are not obliged to provide reasons for decision unless requested, and do not publicise how many abortion‐related decisions they make.

For the remainder of this section, we distil key ethical and legal considerations stemming from the cases. LKZ was the only case where a finding of incapacity was made (Box 3). LKZ's cognitive impairment was caused by a sudden onset medical condition, and the evidence was uncontested and uncontroversial. We therefore focus only on the remaining four cases (Box 2, Box 4, Box 5 and Box 6).

Capacity is decision‐specific

Capacity for decision making on abortion must be considered separately and distinctly from the capacity to decide other matters. Even though a woman may have impaired capacity and require a guardian for other treatment decisions, she may still have capacity to consent to a termination. In BSE, the tribunal noted that the Public Guardian had been making ongoing general health care decisions in its role as Statutory Health Attorney, and it also confirmed the appointment of a guardian to make decisions on accommodation and the provision of services. It noted that the termination decision was a “once off” decision which did not require ongoing planning as did decision making in those other areas.17 Similarly, in the case of C, it was noted that there was an ongoing appointment of a guardian for decision making on health care and services and an administrator for finances. Yet both women were found to have capacity to decide to have an abortion.

In FXB, the woman was an involuntary inpatient under the Mental Health Act 2007 (NSW), which does not require a finding of incapacity for a patient to be treated involuntarily. It requires only that they have a mental illness or be mentally disordered so that their associated actions may result in harm to themselves or others.18 FXB's symptoms warranted involuntary treatment, but she was still found to have capacity to consent to an abortion.

Capacity test is functional, not based on diagnosis

A diagnosis of cognitive impairment does not necessitate a determination of incapacity. BSE, AB (in C) and FXB had all been diagnosed with mental illness, and GKB with an intellectual disability. BSE's and GKB's cognitive impairments meant that they were both receiving support from the National Disability Insurance Scheme for daily living. Nevertheless, in all four cases, a determination of capacity was made because the test for capacity is functional and not based on diagnosis. Thus, in every case examined, the women who had requested abortions had capacity to provide lawful consent.

General understanding of the procedure

In applying the functional test of capacity, tribunals consider the clarity of the women's reasons for wanting a termination and whether they had a general (not technical or medical) understanding of the procedure. They also consider whether the women understood the nature of the options facing them. Potentially, the complexity or risk level of the particular procedure in any case could have an impact on the woman's understanding of it and, ultimately, the capacity determination.

Notably, no case examined concerned an abortion after 20 weeks, where the procedure may be more complex. Nor did we find any cases where an abortion was recommended for a woman for medical reasons but she refused. The capacity threshold to refuse an abortion, in the face of possible injury or death occurring, may be higher.19,20

In FXB, since the tribunal had no power to consent to surgery for an involuntary patient under the Mental Health Act 2007 (NSW), consent for a medical abortion was sought at 19 weeks. Although medical abortions are mostly performed up to nine weeks’ gestation, the guidelines from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists recommend offering a choice of procedure up to 24 weeks’ gestation.21 However, performing this procedure for FXB at 19 weeks’ gestation was explained to be more complex. A medical abortion usually requires self‐administration of mifepristone and misoprostol 48 hours apart under medical supervision and with necessary follow‐up.21 In FXB's case, hospitalisation and multiple doses of misoprostol were required. Despite this added complexity, FXB consistently repeated back to the consultant obstetrician and gynaecologist what was going to happen, and a finding of capacity was made.

Differing medical opinions

In cases of uncertainty, it is important to consider evidence from a wide range of witnesses. In FXB, the opinions of the psychiatrists on capacity differed from those of the obstetrician and gynaecologist consultant and registrar. The psychiatrists believed that because of her schizophrenia, FXB could not relay her reasoning or weigh up the risks and benefits of the procedure in a “consistently logical manner”. However, the obstetrician and gynaecologist consultant and registrar responsible for the abortion, whose evidence the tribunal ultimately preferred, both found that FXB was consistent in her desire for a termination and understood the nature of the procedure, including the associated risks. FXB's separate legal representative also submitted that, in all her discussions, FXB had demonstrated an understanding of the procedure and her other available options.

Undue influence

In both GKB and BSE, questions were raised around undue influence, highlighting the need for vigilance around the issue of reproductive coercion.22 GKB had previously moved away from her family because of domestic violence, and it was reported that they may be disapproving of the pregnancy, albeit not yet accepting its reality. BSE's guardian reported that, initially, she was concerned about her boyfriend seeking an abortion for her but that it was no longer an issue. In each case, the tribunal found that undue influence was not an operative factor in the decision to seek an abortion.

Summary and conclusion

For adult women, an analysis of the limited number of recent cases reinforces that:

• capacity is always presumed;
• women can still have capacity to consent to an abortion, despite being found to lack capacity for other decisions; and
• a general understanding of the nature and effect of the procedure is sufficient to fulfil the functional test of capacity.

All of these cases are very much decided on their facts, and, as such, are not binding precedents for future tribunals and medical or legal practitioners. We further note that, due to the small number of cases, they cannot be said to be representative in any statistical sense. However, they can nevertheless be influential and provide a useful reference point in difficult cases. Although there may be scope for variation between jurisdictions, reliance in every jurisdiction on a functional capacity test suggests the tribunals’ reasoning and conclusions will likely align in cases concerning adult women. In the cases of women under the age of 18 years, different laws will apply.23,24

When capacity is uncertain, medical practitioners should seek information and evidence from a variety of sources, including psychiatrists, other mental health practitioners, obstetricians and gynaecologists, Indigenous health workers, support workers, family and friends. Medical practitioners should be mindful of situations suggesting reproductive coercion and provide decision‐making support for women whose capacity has been questioned. In contentious cases, legal advice may be required.