By Rebecca Brione, 26th May 2021
Over the last two years there have been at least eight cases heard in the Court of Protection concerning place and mode of birth for women who were deemed to lack capacity under the Mental Capacity Act 2005. The case reported last week is the second in a few months about the care of a woman with agoraphobia. Birthrights has been concerned for some time about the extent to which women who are deemed to lack capacity are receiving dignified and rights-respecting care. As noted in the previous agoraphobia case, “a person who lacks capacity has the same human rights as a person who does not lack capacity”. However, in practice it is sometimes hard to see how this is enacted in birth decision-making, when women’s stated choices, wishes and values are often discarded in their ‘best interests’.
As regular followers of the Open Justice Court of Protection project will be aware, this latest case concerns a young woman – referred to throughout as “the mother” – deemed to lack capacity as a result of severe agoraphobia, who had left her home only on a very few occasions in recent years. The judgment states that she wishes to have a home birth, but that this is “due to her agoraphobia and fear of going out”. It indicates that there are no clinical risk factors which might favour hospital birth. However, the issue at hand, we are told, is not the relative benefits and risks of home versus hospital, but the risks associated with transfer to hospital, particularly in the event of a “blue light ambulance emergency”, and whether a planned transfer to hospital is in her best interests.
What is striking in this judgment is the lack of detail behind some of the key statements. It is possible that some of this was laid out in Court, however we don’t know. No-one from the Birthrights team was available at short notice to travel into central London to observe the case; and we know that remote observers were not permitted to attend. This has created significant barriers to understanding what was going on behind the ruling, in the absence of hearing the detail presumably spelt out in Court. There was no apparent reason for this failure to make the hearing open and accessible to observers who happened not to be in commuting distance to London. A video link was available and in use for the woman herself and for other witnesses to participate in the hearing. This technology has successfully enabled many other hearings to be observed, and we know in this case observers stood ready and waiting.
It is particularly frustrating since the Court heard this case before the woman was in labour (so before there was a concern about a contemporaneous obstetric emergency), allowing her to take part in the hearing “at a time when she is not in labour, pain or distress”. The Judge commented that it also permitted “a thorough and informed investigation to take place, as well as a fair and transparent hearing, lasting many hours, in which to test out the issues and evidence”. Our understanding of the case would be significantly improved by having been able to hear reports of this first-hand investigation into the issues and interests in play, particularly the woman’s wishes, preferences and values, and from having more of the deliberation reflected in the final ruling. We have previously joined with calls from others for cases to come to Court in a timely manner, in particular to avoid women going unrepresented. Yet even in this case, with time and with representation (via the Official Solicitor), the woman’s voice is hard to find in the final ruling.
The judgment states that she “would prefer to give birth at home” but attributes this solely to her agoraphobia. This may be an accurate rendition – some of the legal team involved suggested in their commentary that she wanted a hospital birth – but it is not at all clear from the ruling whether or not this really was the only factor that weighed into her wishes. The expert obstetric and psychiatric witnesses speculated that she might more willing to transfer from home to hospital in the event of an obstetric emergency, but there is no sense of whether she herself had been supported – perhaps by a specialist midwifery team – to consider how she might feel or react in such circumstances, or what care would be most helpful to her if this situation arose.
The judgment gives much more space to the views of her partner and mother, who both support transfer to hospital. Combined with the desire to avoid the risk of a “catastrophe” arising during a home birth, and the statement that “the mother dearly wishes to give birth to a healthy baby, undamaged by birth”, Mr. Justice Holman comes to the view that “but for her agoraphobia, the mother herself would opt for a hospital birth”.
As a result, he goes on to authorise both transfer to hospital for a planned birth, and the use of force if necessary, the latter against the submissions of the Official Solicitor representing the woman’s interests.
The judgment does recognise that a forced transfer is “a severe infringement of the mother’s personal autonomy and liberty”, but this is deemed acceptable to avoid the “low” but “grave” risk of a scenario arising at home from which the woman or her baby “cannot be rescued” from grievous harm. For those of us who follow such cases, this reasoning is strikingly familiar. The law is clear that the foetus has no legal interests prior to birth, but inevitably, a healthy baby is deemed to be in the best interests of the woman, despite the harm associated with the actions designed to protect her.
In this case there is at least an attempt to enumerate (some of) the specific harms which may be associated with the use of force in transfer. This does not always happen. However, the brief analysis is presented as “speculative” only, and it is not clear why the Judge ruled that use of force would be proportionate even in a planned transfer, against the submissions of the Official Solicitor.
The Care Plan
In the interests of taking a balanced view, it is worth noting that the level of detail about the final care plan available in and appended to the ruling is beneficial to commentators who were unable to observe the hearing. However, even here there are concerns. The care plan states that it “takes account of the principles of least restriction and patient choice as far as possible, but ultimately decisions have been taken to ensure clinical safety”. But clinical safety is not (necessarily) the same as best interests. And as Prof. Wilkinson noted in his blog, it is not at all clear why the less restrictive option of authorising transfer in the event of medical indication was not given more consideration.
Similarly, the care plan ostensibly reflects the finding that the woman has capacity to choose between induction of labour or Caesarean once at hospital (although apparently not to choose to wait for labour to start). But even this is troublingly circumscribed with the caveat in the ruling that “unless there is a significant medical contraindication, the hospital will respect and be guided by her choice on the day”. Whilst it is the case that a clinician cannot be mandated to give treatment that they believe is clinically contraindicated, this statement does not paint a picture of a genuine free choice, within a sphere where the woman had been declared to have capacity.
This case is only the latest to rule transfer or obstetric treatment to be in a woman’s best interests, despite her stated wishes and feelings. In many cases, the orders deemed necessary by the Court end up being redundant – in the previous agoraphobia case, the woman gave birth at home before transfer could be effected and in this case the woman apparently accepted oral medication to manage her anxiety and was then guided into an ambulance with the support of her family and midwife. What is rarely known, however, but of huge concern, is the long-term impact on women of going through Court processes and having rulings made about the births of their babies that go against their wishes.
Across this area, much more work is needed. We are hugely grateful to the work that the Open Justice Court of Protection Project is doing to highlight the workings of the Court, making them more accessible, and disseminating expert commentary on some of these hugely challenging decisions. There is unlikely to be a one-size-fits-all response to reducing the number of cases coming to Court in the first place and to ensuring that those that do result in best interests decisions which are firmly and unequivocally rooted in a thorough understanding of the person’s wishes and feelings. Support for those who find their capacity in question is vital, as is a grounded understanding of risk and – as the Judge does refer to in this case – the range of decisions that capacitous women regularly make in the face of similar risk profiles. Over the coming months we are looking forward to developing collaborative work with diverse experts across midwifery, medicine and the law to ensure that women always receive rights-respecting care, even in the most challenging of circumstances.
Rebecca Brione is the Research and Partnerships Officer at Birthrights @birthrightsorg. She is also an independent researcher in bioethics in relation to pregnancy and birth and tweets @RebeccaBrione.