Human rights in maternity and the Court of Protection

By Members of the Perinatal Mental Health (PMH) Midwives UK forum, 25th May 2021

In a recent decision in the Court of Protection (A NHS Foundation Trust v An Expectant Mother [2021] EWCOP 33 (13 May 2021), Mr Justice Holman authorises the use of force if necessary to compel a pregnant woman with agoraphobia to leave her home in advance of her due date to give birth in hospital. 

We are deeply concerned about the implications of the decision on the maternity care of women with complex mental health needs. 

We write as perinatal mental health midwives and members of the Perinatal Mental Health (PMH) Midwives UK forum. 

Specialist perinatal mental health midwives (as well as consultant midwives who have a remit for perinatal mental health) are frequently involved in complex birth planning for women with significant mental health disorders.  (For more information about this role see the Royal College of Midwives document here).

We have experience of creating individualised birth plans for women with severe anxiety, obsessive-compulsive disorder, post-traumatic stress disorder and psychotic illness, as well as agoraphobia.  We have experience of cases where the multi-disciplinary team had positively planned for a home birth as the safest and most preferred option, with care provided by an experienced group of midwives skilled at home birth, and ongoing senior support and planning for labour events as well as planning for possible deterioration in mental health.  Our experience is that in all these cases,  there were safe and happy outcomes – without recourse to court orders or forced hospital transfer.

We are gravely concerned that this judgment permits the use of chemical and physical restraint to enforce a hospital admission, without any actual risk to the life of mother or baby.

This sends a very worrying message to women who want to choose to stay at home to birth their babies.

Forced hospital admission risks psychological impact of further trauma postnatally, damage to the mother’s ability to bond with her baby and to parent,  as well (as acknowledged by the court medical experts) known trauma and long-term adverse effects from the use of restraints.  These concerns have not, in our view, been adequately or fairly considered in making this judgment. 

We believe this judgment to be a form of ‘obstetric violence’ – the over-medicalisation of childbirth without informed consent.  This term was  first officially introduced in 2007 in Venezuela as a new legal term rooted in a human rights perspective (see Perez, 2010, and   the powerful film by Amnesty International here).  It’s defined as:

“the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women”.

Place of Birth

In para.11 of the judgment, Mr Justice Holman states that this case is “not about the advantages or disadvantages of hospital birth or home birth” (his emphasis) but it in fact rests heavily upon a claim that home births often result in emergency transfer to hospital and are more likely to result in “a still-born or otherwise seriously damaged baby” (para. 14) – a claim that seems to originate from Professor James Walker, the consultant obstetrician expert witness, and for which no reference is provided. This seems to us a highly inflated claim.

The largest recent and most comprehensive meta-analysis comparing outcomes of intended home and hospital birth(Hutton et al,  2019) finds that  risk of stillbirth, neonatal mortality or morbidity is not different whether birth is intended at home or hospital. A further systematic review and meta-analysis (Reitsma et al, 2020) found women intending to give birth at home were less likely than women intending to birth in hospital to experience: caesarean section, operative vaginal birth, epidural analgesia, episiotomy, 3rd or 4th degree tear, oxytocin augmentation and maternal infection.  

A hospital birth, in particular a non-medically indicated induction or caesarean, has greater risks to the mother and no improvement in outcomes for her baby. Yet women with severe tokophobia (overwhelming fear of childbirth)  are supported in their choice of mode of birth and offered caesarean sections despite evidence that a non-medically indicated caesarean has some increased physical risks for the mother and no perceived benefit for the baby. It is not considered good practice to sedate women with tokophobia and force them to have a vaginal birth. 

But Mr Justice Holman is forcing unnecessary intervention on the agoraphobic woman in this case and increasing her risks of having unnecessary surgery when she is expressing an entirely reasonable wish to remain at home.  At home,  the likelihood is that she will have a healthy baby via vaginal birth without intervention. Instead, it seems highly likely that she will end up with a caesarean section via general anaesthetic as a “choice” she will make arising directly from forced hospital admission (para. 23).

Transfer from home to hospital is often resisted initially and can rarely be ‘guaranteed’

According to Mr Justice Holman:  “The nub of this case is the potential difficulty of transferring this particular mother to hospital if a medical emergency arose, but she was so overcome by her agoraphobia that she would not go.” (para. 11).

In our experience, transfer from home to hospital is not always something women readily agree to at the outset.   However, when faced with an emergency situation most women are strongly motivated to act in the best interests of themselves and the unborn child. The chance of achieving this outcome is even stronger when a woman’s concerns have been heard and validated by the team caring for her. 

In this case, in the unlikely situation where birth started at home and urgent transfer to hospital was recommended, both expert witnesses (one a psychiatrist, the other an obstetrician) considered that this mother would indeed accept (albeit “grudgingly”, para. 19) a transfer to hospital – although this could not be “guaranteed” (para. 19).  As we understand it she has not (in advance of the event) declined transfer in an emergency. In our view, using litigation to control this situation before it has unfolded is unhelpful.

Women with the capacity to make their own decisions about place and mode of birth are legally entitled to make ‘unwise’ decisions.  This includes those with complex physical conditions, for whom birth in hospital is recommended as the safest place.  Nonetheless, they have the human right to give birth in a place of their choice, and are frequently supported to do so.  In this context, we consider it entirely disproportionate to deny to the woman in this case the freedom of choice to birth at home that is afforded to capacious expectant mothers, and to give so little weight to her wishes in this matter. 

This judgment undermines trust between women and caregivers

This judgment has been widely publicised in the media (as analysed in this blog) and has resulted in heightened public awareness of the possibility that a pregnant woman can be forced to comply with an order from a court.  This can only undermine our ability to build good relationships between women and caregivers, thereby making it harder for us to work together to achieve safe outcomes. 

It is this trust which, as specialist perinatal mental health midwives, we seek to build in the most challenging of circumstances to support open conversations about risks and rights. 

The most important theme through all of our experiences in caring for women with severe mental illness (and, possibly, lack of mental capacity for birth-related decision-making) is that we listen to women. We ensure each woman feels safe and heard.  We ensure that we give her all the evidence in a non-biased way, develop a trusting relationship,  and are able to act as her advocate. 

This trust, which supports women making safe decisions about birth and preserves women’s psychological safety, is totally undermined by this judgment. 

The Court of Protection needs midwifery expertise in perinatal mental health (PMH)

From the judgment it appears that the court heard expert evidence from two people.  One was 

Dr Tyrone Glover, a consultant psychiatrist, who gave evidence about the debilitating effect of the woman’s agoraphobia on her decision-making capacity about leaving her home.  The other was  Professor James Walker, a consultant obstetrician with numerous recent publications on pre-eclampsia (which is not at issue in this case). 

We are very concerned that the Court of Protection did not seek evidence from a Consultant Midwife with a remit in PMH and/or a specialist PMH midwife.  Midwives are the experts in physiological birth and in particular home birth, and as such an expert view from this profession should have been sought rather than an obstetric view only. 

As PMH midwives we have a huge amount of experience in the practicalities of birth at home, in midwifery led care as well as supporting ‘out of guidance’ birth plans in complex cases. 

It is a great pity for this woman, and for all women reading about this case who are now concerned about being forced into hospital themselves, that the appropriate expertise was not made available to the court – and, indeed, to the woman herself before the case ever came before the court, thereby avoiding the need for legal intervention.

We recommend that when cases like this arise in future and appear to be heading towards the court,  contact should be made with the woman’s local or neighbouring Trust for a consultant midwife with PMH remit or specialist perinatal mental health midwife. This might avert the need for a court hearing altogether.  Alternatively, we would be available to provide evidence for the court and can be contacted via our team email address: perinatalmentalhealthmidwives@gmail.com

Authorship: This piece was written collectively by members of the Perinatal Mental Health (PMH) Midwives UK Forum. It reflects the opinions of the individual authors not their affiliated Trusts. Unless otherwise indicated each of the authors is a perinatal mental health midwife: Kate Allon, Laura Bridle (also trainee consultant midwife), Susie Cabrillana, Kelda Folliard, Suzy Hall, Mary McCarthy, Louise Nunn (Consultant midwife, PMH lead for maternity and Co-Chair NW London Mental Health clinical network, Chelsea & Westminster Hospital NHS Trust), Bernice Peter, and Laura Walton.  Contact: perinatalmentalhealthmidwives@gmail.com

Photo by Isaac Quesada on Unsplash