Re: An Expectant Mother [2021] EWCOP 33: A lawyer’s perspective

By Victoria Butler-Cole, 27th May 2021

The essential factors in the approach of the court to applications concerning birth decisions are well established.  Does the (expectant) mother lack capacity to make a particular decision for herself by reason of a mental impairment or mental disorder?  If she does, which of the arrangements on offer is in her best interests and should be consented to by the court on her behalf?  If the proposed arrangements include the use of force, is that necessary and proportionate?  

In this case, the mother had been diagnosed with agoraphobia, and the consensus view of the psychiatrists involved was that this caused her to be unable to make a decision about whether to have her baby at home or in hospital.  She had been unable to leave her home for ‘several years’ other than on a ‘very small handful of occasions’, as this caused her ‘overwhelming sensations of anxiety, shortness of breath, dizziness and palpitations’.  She was also said to have short-term memory problems, although the cause of these was not identified. 

We can see from the order made in the case, that the particular decisions that the mother was unable to make were ‘decisions about the location of the delivery of her baby’.  She was said to be unable to weigh and process relevant considerations as a result of being overwhelmed by her agoraphobia.  These considerations are not identified in the judgment – one assumes the analysis was that she was not able to weigh the objective benefits of delivery in hospital as against delivery at home, because she viewed going to hospital as out of the question and could not consider it at all.

The formulation of the decision she lacked capacity to make is important: she was not found to lack capacity to decide on the mode of delivery, only the location. This is perhaps a difficult distinction to draw, since an elective c-section could only take place in hospital, and a home birth could only take place at home.  The order envisaged that she would be able to choose, once in hospital, between induction of labour or an “elective” c-section.  (This is a little puzzling, since one would think that such a decision ought to be made in advance, the mother’s mental capacity being likely to be most impaired on arrival at hospital having been taken there against her wishes or with the use of force.) The finding that the mother lacked capacity to decide about the location of delivery leached into her apparent capacity to decide about the mode of delivery. 

The decision on best interests turned on the evidence of health professionals about the risk to the mother of going into labour at home and then requiring admission to hospital.  This was said to occur in about 45% of similar cases, of which about 10% were admissions for urgent medical emergencies. In about 1-2%, these would be ‘urgent blue light ambulance transfers’.  Further, the court was informed that home births resulted in 1 in 100 still births or ‘otherwise seriously damaged’ babies, compared to 1 in 200 hospital births. The judgment does not say whether these figures relate to healthy 21-year-old first time mothers like the mother in this case, or whether they concern all births.  The difference in risk is said to be ‘largely attributable to delays in effecting a transfer from the home to the hospital’.  As ever in medical treatment cases in the Court of Protection, the statistics relied on by the judge are the ones the particular health professionals or independent experts happen to cite – we know from other blogs published by the Open Justice Court of Protection Project  in response to this judgment (e.g. here and here) that the statistics in this case may not be universally accepted as accurate.

So, attempting delivery at home was riskier than in hospital, because in the unlikely event that medical intervention was required, it would be quicker and easier to obtain that intervention if the mother was already in hospital.  This in and of itself would surely not be enough to overrule a mother’s wish to have a home birth – the higher risks identified are ones which women often choose to take, having balanced them against other considerations.  In this case, there were two additional factors – the first was that the mother’s agoraphobia might mean she was resistant to going to hospital even if an urgent need for medical intervention arose, and so the delays or risks of transfer were higher than for other women. The second was that the court found that the mother herself would have wanted to give birth in hospital were it not for her agoraphobia. The reasons for this finding are not given, nor does the judgment contain a full account of the mother’s own stated views.

On the first factor, it is notable that there was no evidence before the court about the extent to which mothers with agoraphobia (or other conditions) are in fact resistant to obtaining medical intervention in the midst of labour if advised that it is necessary to ensure the safety of themselves or their baby.  In so many of the cases about mode of delivery that come before the court, the concern of the health professionals is that there will be lack of compliance in labour.  Yet in most cases, the babies are born without resort to force or the authority of the court order. Is that because the existence of the order compels compliance? Or are women in labour, whether they have a mental disorder or not, in fact very likely to comply with medical advice when their safety or that of their baby is at risk?  Does being in labour itself affect the mental functioning of women with conditions like agoraphobia?  

In this case, the independent psychiatrist said that ‘the mother’s ability to co-operate and grudgingly accept hospital transfer would be significantly enhanced’ (if it was advised during labour), but he aded that ‘her co-operation or acquiescence could not however be guaranteed’.

Is a guarantee necessary? There is no real consideration in the judgment of why the court assumed that the mother would remain resistant to going to hospital, if the delivery turned out to be in the (claimed) 10% of cases where urgent transfer was advised.  The judge said that the evidence on the mother’s likely behaviour if that occurred was speculative – but this will inevitably be the case in such a situation, and it cannot be an excuse for not considering all the risks and benefits carefully.

One reason, perhaps, for the lack of analysis, is that the Official Solicitor agreed on behalf of the mother that it was in her best interests for the baby to be born in hospital.  There was therefore no-one arguing the contrary position – that there was a 90% chance that no hospital admission would be needed; that even if it was, it was likely the mother would comply with transfer; that compelling the woman to attend hospital before going into labour would inevitably result in her having a medical delivery (either induction or, more likely given her agoraphobia, a c-section under general anaesthetic); and that the psychological impact on her of a forced hospital delivery in the absence of any need for medical intervention could be severe, affecting not only her ability to bond with her new-born baby, but also her relationship with the baby in the longer term, and her future decisions about pregnancy.  As a result, the judge perhaps felt that he did not need to deal with these arguments in any detail in the judgment, even if they had been raised during the hearing.

The judgment does not set out the risks to the mother and baby of labour being induced, or of the option the mother said was most likely – namely a c-section under general anaesthetic.  So there is no weighing up of these considerations against the risks of a possible delayed hospital transfer during labour.

The only issue in dispute before the judge was whether any physical force could be used to take the mother to hospital, in order for her to be induced or have a c-section.  The Official Solicitor had agreed that sedating medication could be administered to her, but did not support the use of physical restraint (other than if the mother had gone into labour at home and needed to be transferred to hospital in a medical emergency).  

The psychiatrists had agreed that the use of force may have a ‘damaging psychological effect’ on the mother.  The court noted that “It may entrench her agoraphobia. It may damage or impair her bonding with her baby. It may give her long-term flashbacks. It may compromise her attitude to future pregnancies, or her dealings with persons in authority.”  The judge found that these concerns were outweighed by ‘the known, if small, risk that if a pre-planned birth cannot be achieved, some acute emergency may…arise in the home from which the mother cannot be rescued before some catastrophe occurs to either her or her baby’ and relied on the mother’s stated (and unsurprising) wish that no such catastrophe should occur.

Based on the publicly available information in the court’s judgment, order and care plan, I am not surprised that concerns have been expressed about the decision.  There is a lack of detailed evidence about the physical, psychological and emotional risks to the mother of enforcing a hospital delivery on her (in particular a c-section under general anaesthetic).  There is apparently no meaningful engagement with what the psychological risks might mean for the mother and for her relationship with the baby.  There is no detailed evidence or analysis about why it would not be proportionate to transfer the mother to hospital only if an emergency arose, even though the chances of such a transfer were relatively low and it was said the mother would be significantly more likely to accept the medical intervention offered in such circumstances.  Although the use of ‘balance sheets’ has been criticised, they can have the advantage of ensuring that all the relevant considerations are clearly identified, and can then be evaluated and weighed.

For future cases, it would be helpful if there was published evidence about the realities of supporting women with mental health conditions and learning disabilities during labour to give some content to fears about lack of compliance, as well as easily accessible information and expert evidence about the impact of birth trauma.  A judge confronted with alarming statistics about the risk of serious harm to a mother or her baby (in this case, a 10% risk of an urgent medical problem arising and a delay in getting to hospital as a result of the mother’s agoraphobia) will need thorough and considered evidence to enable the various options to be properly evaluated.    

Victoria Butler-Cole QC of 39 Essex Chambers has appeared in many cases in the Court of Protection, including capacity disputes, challenges to DOLS authorisations, welfare matters, medical treatment disputes and financial cases. She is also instructed in medical treatment cases concerning babies and children. She tweets @TorButlerCole

Image by Steve Brown from Pixabay