By Celia Kitzinger, 17th May 2021
Editorial Update: The judgment has now been published – click here.
On 14th May 2021, BBC News and two national newspapers ran a story about a Court of Protection hearing concerning a 21-year-old woman with agoraphobia who is pregnant and wants to give birth at home. There is no published judgment available yet so these media reports are the only publicly available sources of information. I was not able to observe this hearing in court since (unusually) the public were refused permission to attend via video-link – this is itself a cause for concern which I discuss at the end of this blog.
All three headlines draw attention to the judge’s decision that she can be “forced” into hospital against her wishes. According to the Guardian, “Justice Holman concluded that it would be in the 21-year-old’s best interests to allow staff trained in restraint techniques to use minimum force if the woman refused to leave home.”
As far as I can tell from the media reports, which are short on detail, the Trust responsible for her care made an application to the Court of Protection for (1) a declaration that the woman lacks capacity to make this decision for herself, and (2) that it’s in her best interests to give birth in hospital. Apparently, her partner and family agree with the Trust.
The woman’s lack of capacity to make her own decision about place of birth is attributed (by BBC News and the Guardian) to her agoraphobia: “Justice Holman concluded that the woman’s agoraphobia meant that she did not have the mental capacity to make decisions about the birth of her baby”. The Guardian reports that she is “overwhelmed” by her agoraphobia and the BBC report says she “has an “overwhelming” fear of leaving her home”.
The Independent does not use the word “capacity” or indicate that any decision has been made in relation to the woman’s ability to make her own choices but simply discusses her best interests.
All three reports start with the judge’s claims about what is in the woman’s “best interests”. This is addressed prior to – or, in the case of the Independent, without – any statements about capacity, And none of them provides any evidence at all as to why the judge (or anyone else) thinks it’s in her best interests to give birth in hospital.
This naturally leads readers who understand the Mental Capacity Act 2005, and especially those who work with birthing women, to feel concerned.
Agoraphobia, as evidenced by “an overwhelming fear of leaving her home”, is surely rather a good reason for choosing to birth at home, rather than hospital. Home is a place in which she feels safe and secure.
There is no account of any particular medical condition that makes home birth inadvisable for this woman, nor any description of contra-indications for home birth (e.g. this NHS website advises against home birth as unsafe “if you’re expecting twins or if your baby is lying feet first (breech)” but there’s no indication that either is the case here.) The same website also states that for a first baby, there is a very small increased risk of negative outcomes (from 5 in 1000 for a hospital birth to 9 in 1000 for home birth) and that “if you’re having your second baby, a planned home birth is as safe as having your baby in hospital or a midwife-led unit”.
So, it’s really not clear why the judge is quoted as saying there was a risk that something could go wrong if the woman gave birth at home, and that this could result in “catastrophe” – a word used in all three articles. This same quotation is also used across all three sources:
“I think you should go to hospital and have this baby,” Justice Holman told her. “It will avoid potential risks and disaster if something goes wrong.”
This is baffling. It may be that journalists have somehow omitted to report salient health considerations that would militate against home birth – but in the absence of any such information, the judge comes across as simply ill-informed about home birth and as perpetuating a medicalised model of childbirth at the expense of women-centred care.
The media reports indicate that this woman’s legal representative (the Official Solicitor) did not challenge the finding that she lacked the mental capacity to make a decision about where to give birth, but did disagree with the use of force to compel P to go to hospital in a non-emergency situation.
“Lawyers representing hospital bosses responsible for her care had said the use of force should be approved. But lawyers representing the woman had disagreed, and said she should be allowed to give birth at home if she would not leave and could not be persuaded to leave, unless an emergency arose.” (Guardian).
Although this woman is willing it seems (from the BBC report) to go into hospital in an emergency (“She wants a home birth – unless there is an emergency”), the judgment is that force may be used to compel her to go into hospital “if she refused to leave home on a specified day near her due date” – so in advance of any potential emergency.
So, this woman seems to have agreed in principle to go into hospital if there is an emergency during her labour, but wants to start labour at home and see how it goes. But the judge has ordered – contrary to submissions from the woman’s lawyer, the Official Solicitor – that she must go into hospital a few days before her due date – i.e. prior to any emergency situation. If she does not agree to do this, and cannot be “persuaded”, he has authorised “some trained force and restraint” (Guardian) if needed, describing this scenario as “unattractive”, but her best interests.
Judges in the Court of Protection usually give a great deal of weight to the position taken by the Official Solicitor as to what is in the person’s best interests. It seems that on this occasion the judge approved a forcible transfer to hospital contrary to the opinion of the Official Solicitor as to what is in this woman’s best interests. The fact that the Official Solicitor’s position was not the one accepted by the judge does suggest to me that it is not unreasonable to have concerns about this judgment – as I do, and as do many members of the public (with the proviso, of course, that the details available to us are limited).
Public response to media reports
Overwhelmingly the public response to media reports of this judgment has been anger, fear and distress.
This comment from a former midwife appears below the line in the Independent, (which also features comments characterising the judgment as “medieval”, and as “violating her rights” – as well as an explicit comparison with the patriarchal dystopian world of Margaret Atwood’s Handmaid’s Tale in which women are subjugated vessels for the production of babies).
Across social media, many people working in health and social care – including childbirth educators and activists, midwives, doctors and doulas – have expressed dismay at the judgment using words like “terrifying”, “draconian”, “outrageous” and “horrific”. “Disgusting”, said one, “patriarchy and sexism in full flood”, wrote another.
Feminist psychologist, Jessica Taylor tweeted:
Childbirth activist Michelle Quashie tweets:
Also in a tweet, obstetrician, Susan Bewley described the judgment as “a shocking abuse of human rights”. And Kathryn Gutteridge, a Consultant Psychotherapist supporting women surviving sexual abuse and childbirth, said that the judgment as reported in the media “smacks of ill-informed people using the law to get what they want. As a clinician I would never want to use this sledgehammer to care for a woman”. Another health care professional tweeted:
“I find it hard to understand which staff exactly are going to be expected to lay hands on this woman and force her to do something that she doesn’t want to do. I’m waiting to see the COP report, but as a MH nurse, given what I’ve read, I would not be willing.”
According to the Birth Trauma Association:
Rob Buist, a specialist obstetrician and gynaecologist with a particular interest and extensive experience in the management of complicated pregnancies tweets:
People with agoraphobia have also expressed concern. (These tweets are used with the authors’ express written permission):
What’s the evidence that she doesn’t have capacity to make her own decision?
Capacity is a particular concern for some people who asked whether in fact -and if so on what basis – it was found that the woman lacked capacity to make her own decisions about where to give birth. This was not entirely clear from the media reports – and of course simply having a diagnosis of ‘agoraphobia’ (or any other disturbance in the functioning of the mind or brain) is not in and of itself sufficient for determining that a person lacks capacity to make a decision. The Mental Capacity Act 2005 requires a presumption that a person does have capacity to make their own decisions (s.1(2)), and claims that they do not must show that they cannot understand, retain, weigh or communicate information relevant to the decision that needs to be made (s.3). No such information was given in the press. As these two health professionals correctly say, agoraphobia is not itself evidence of lack of mental capacity
The following exchange is between a Court of Protection lawyer and a medical ethicist – who also raises the key questions he would want to see addressed.
Why is forced removal from her home and hospital birth in her best interests?
Even accepting she lacks capacity to make her own decision about her birth, it was radically unclear from the media reports why being forced into hospital was in her best interests. It was generally assumed that there must be compelling medical contra-indications for home birth – although none are mentioned. “I assume there is something medical we’re not being told” tweets a student midwife. “Is this a high-risk pregnancy with a high risk of birth complications?”, asks a medical lawyer. “What’s the medical reason why she can’t have a home birth?” tweets someone else. Obstetrican Susan Bewley worries that the judge has simply assumed that home birth is risky.
A failure of open justice
Based on my reading of the news reports, these concerns, challenges and expressions of outrage seem appropriate: there’s no evidence that the woman at the centre of this case lacks the capacity to make her own decisions, and no hint as to why a hospital birth is considered to be in her best interests. It does sound draconian.
My views, and those of other members of the public, might be different if we had more access to information about the case. At least our criticisms and our challenges would be more informed.
I have personally attended 177 hearings in the Court of Protection since the beginning of lockdown (and about two dozen before that). As an academic psychologist I also have some research background in home birth and – full disclosure – I also grew up with a mother who was a powerful advocate for home birth and women’s rights to make their own choices in pregnancy and labour. The issues raised by this case concern me deeply as a feminist and as someone with strong personal commitments to autonomy, especially in relation to medical treatments.
I was not able to attend this hearing – although it was held “in public”. The Royal Courts of Justice provide no information in their listings as to what cases are about, so although I would have chosen to attend this hearing if at all possible, since it relates to key areas I’m interested in, I didn’t know about it until part way through. Then I was told that the judge would not allow public observers to attend via the video-link (only in person). I could not justify a 5-hour journey to London to observe this hearing during a pandemic, even if I’d known about it in advance with time to travel down, which I didn’t. I have attended other so-called “hybrid” hearings via video-link, so I don’t understand why the judge in this case made the decision that observers must attend in person.
I have attended two previous cases concerning court-ordered caesareans and am in contact with childbirth experts based in London who have expressed interest in observing hearings where orders are made concerning women in childbirth. None of them was free at such short notice to attend.
If members of the public had been able to attend, we would have a much better understanding of the facts of the case, and I would understand why the judge made the judgment he did (whether or not I agreed with it).
I have now requested access to the position statements from the parties (these are the skeleton arguments barrister produce in writing before the hearing) and am planning a follow-up blog post when I have more information. I’m told the judgment will be published shortly too and will post a link to it when it appears.
What this experience clearly demonstrates is that it’s not sufficient for open justice to have to rely on reports from journalists. Media accounts are necessarily abbreviated versions of complex decision-making processes. Journalists cannot be expected to engage with these issues in the same way as a consultant obstetrician, a specialist perinatal community mental health midwife, a feminist psychologist, or an expert by experience. There are limits to the extent to which a journalist can act as the “eyes and ears of the public”.
Open justice means supporting access to the courts for members of the public too. When health and social care professionals, activists, and ‘experts by experience’ are also able to attend court hearings, the quality of the reports they produce (as evidenced by those in our blog) is often detailed, sophisticated, thoughtful and knowledgeable. By observing hearings, instead of simply reading about them in the press, people with passionate commitments to particular issues can come to appreciate the care and attention with which the Court of Protection normally proceeds, the moral dilemmas and challenges it faces, and the balancing exercises it engages in. Tweet threads about hearings have engagement indexes in excess of 3000 people; our most popular blog posts have between 4000 and 5000 reads: there is clear interest in understanding more about these hearings than is conveyed in mass media publications like those discussed here.
And whether members of the public agree or disagree with a judgment, the opportunity to develop our understanding of the way in which the decision has been reached, moment by moment, as evidence is heard, and lawyers present positions, and judges interrogate them, is an essential component of ‘open justice’ in a democratic society.
Celia Kitzinger is co-founder (with Gill Loomes-Quinn) of the Open Justice Court of the Protection Project. She tweets @kitzingercelia