By Ruth Fletcher, 5th July 2021
The decision in ‘An Expectant Mother’ is unsettling on many levels, not least because it takes a harsh legal approach when a care-full one is needed. Instead of paying even more attention to the experience of the agoraphobic pregnant woman at the heart of this case, somehow the judgment has ended up turning her pregnancy and her agoraphobia against her.
How has this Court of Protection decision come to authorise forcible removal, a planned delivery, chemical restraint, and physical restraint of a pregnant woman who wants to have a home birth? How has P’s agoraphobia become a reason to deny her this choice, rather than a reason to support her in managing her anxiety and her childbirth at home?
One of the frustrating aspects of this judgment is that it could have been so different. The Court of Protection has sometimes delivered on the ‘empowering’ promise of the Mental Capacity Act 2005 by taking extra care to listen to and respect the wishes, feelings and values and beliefs of the Ps who appear before it.
But here the Court has become a means of managing resistant pregnant bodies in anticipation of childbirth, and not for the first time (see Walmsley 2014, Butler Cole 2019). Force and restraint, including the use of personnel trained in Prevention and Management of Violence and Aggression (PMVA) techniques, were authorised as part of the care plan in order to get a woman through childbirth. A woman’s wish for a healthy baby was extracted from the collection of wishes, feelings, and knowledge that she has about her pregnant life, and joined with medical evidence (of a 10% risk of a need for urgent transfer from home to hospital and a 1% risk of a stillbirth) to justify orders permitting forcible removal, a planned delivery, and physical and chemical restraint.
We know that the use of coercive measures in pregnancy, and in mental health, is a key process of generating gender, class, ableist and racialised inequalities for those who participate in life’s reproduction, a process which moves across policing and health care (Chadwick 2018, Thompson 2021). We know too that pregnant people who are living with anxiety, phobias and other mental health conditions want support with difficult situations in their everyday experience and in moments of crisis. What should we legal academics do with this knowledge when commenting on a case of this kind? One thing we could do is draw on the contributions of Black feminists, abolitionists and others who show us how to replace coercion with care, even in moments of crisis, and imagine what critical legal care might be.
In seeking to practice some critical legal care with this blog, I try to avoid ‘blaming the judge’, even though I am critical of the way the judgment has been made. With the possibility of rewriting judgments in mind, I approach the judgment not just as the judge’s authoritative words, but as the result of a series of legal moves, a series which could be arranged differently, and more care-fully. I identify four legal moves that we – the public community to whom law is accountable – need to understand better if we are to participate, and succeed, in making law more care-ful and attentive to the richness of life’s diversity.
The first move is the representation of the pregnant woman as someone whose key social role is the delivery of a healthy baby. The value of her reproductive labour, and of her knowledge about how best to manage that labour, becomes diminished as she is seen by law as always, already a mother. A second move is that the everyday social aspects of making decisions get squeezed out of capacity testing. The capacity test, which normally combines clinical diagnosis with assessment of functional criteria, becomes a biomedical diagnosis that sees a patient as being overwhelmed by, rather than responding to, her symptoms. Third, the judgment has the effect of flattening what is usually a complex multi-stranded process for determining best interests into a legal concern for reducing the risk of stillbirth at all costs. And fourth the consideration of the restraint issues as one dimension of the best interests determination, and without a fuller rights-based assessment of whether such restraint was necessary, has the effect of silencing P. Her views on the use of physical or chemical restraint are not reported even though she participated in the hearing.
1. Seeing the pregnant woman as a mother in need of management
When we law teachers ask students to draw out the significance of a case in a commentary, typically we ask them to first identify the ‘material facts’ of the case. Selecting, and characterising, the material facts of a situation such as this one, where a pregnant woman is receiving support in managing her pregnancy while living with agoraphobia, is a vital legal process. Such selection brings the facts of the person’s life to bear on the law and presents an opportunity to represent them as a whole person with likes and dislikes, quirks and trivialities (see further Rackley 2010). This is a different, if complementary, factual process to the one where medical evidence about clinical risks is considered. It preserves legal space for the curious and particular features of a person’s life, such as the lived experience of agoraphobia while pregnant, which an evidence base might not capture. And it is vital in reminding us that life before the law is not just a matter of biological fact (see further Harrington, Series and Ruck Keene 2019), but a creative process of living in and making our own of socio-legal worlds.
The selection of ‘mother’ in the name of the case and throughout the judgment as the way of characterising this pregnant woman is already telling us something about how the material facts of this case are perceived. The case name tells us that this case is different from the usual incapacity cases where initials are bequeathed to the individuals involved as part of the practice of protecting people’s privacy. And it tells us that the pregnant woman whose care is at the heart of this case is already a mother, even though she has not yet given birth. If this one pregnant part of her story, a part that is important to her, becomes the whole story for law, the part comes to overwhelm the whole and disables her telling of her pregnant future. The problem with this telling of the woman’s story is that her management of her gestational labour becomes invisible, and devalued, in the rush to allow others to manage her as the problem.
2. Squeezing the social dimensions out of capacity and agoraphobia
The second move that I find interesting about the judgment is the way that her lived experience of agoraphobia is turned into a state of being overwhelmed by her symptoms to the point where she is unable to make decisions related to leaving home, but able to make decisions between modes of planned delivery in hospital and between types of anaesthesia.
This happens as the court addresses the first legal issue: whether or not she has legal capacity to make her own decisions. Capacity decisions are crucial legal decisions, which are often made in an everyday context by those mediating access to social care or health care for individuals, and can vary from context to context. If she has legal capacity to make her own medical decisions, then the doctrine of consent applies and she has the right to refuse recommended treatment for her own reasons even if it puts her pregnant life at risk. If she does not have legal capacity, the doctrine of ‘best interests’ applies by virtue of s. 1 of the Mental Capacity Act 2005, and others – here carers and ultimately the judge – decide how she is to be treated.
In response to the hospital’s request for an order and having heard from the woman’s litigation friend the Official Solicitor and two medical experts Holman J declared pursuant to s. 15 of the MCA, that “the respondent lacks capacity a) to conduct these proceedings; and b) to make decisions about the location of the delivery of her baby.”
In getting to this decision however, Holman J does not frame his consideration of the capacity law issues by reference to the ‘cardinal principles which flow from the statute’. These cardinal principles of capacity law were articulated by MacDonald J in C (2015) (paras 25-33), and are cited by MacDonald J in GH (2021) at para 21, the precedent to which Holman J refers for legal authority when he says:
“The judgment of MacDonald J in East Lancashire Hospitals NHS Trust v GH contains a very thorough analysis of the relevant law at paragraphs 19 to 28. I have read it during this hearing. I agree with it, and I incorporate it into this judgment by reference as my narrative as to the applicable law.” (para. 18)
Rather he goes straight to medical evidence as the source for generating the legal reasons why she does not have capacity. The first reason that the court gives is that she has the kind of diagnosis that is required in order to make a legal finding of incapacity because she has ‘longstanding and deep-seated’ (para 10) agoraphobia. Agoraphobia, the court notes “is a classified mental illness, and an impairment of, or disturbance in, the functioning of her mind or brain within the meaning of section 2(1) of the Mental Capacity Act 2005” (para 7). The second reason is because the judge says that she cannot “weigh matters in the balance if the activity in point entails her leaving her home”, which effectively means that she has failed one of the four functional aspects of the capacity test under s 3(1)(c) of the MCA.
There are several points worth noting about how the capacity rules are applied in making the decision here. First, the elaboration of the statutory framework is partial and incomplete. While Holman J clarifies that section 2(1) MCA is the basis for the diagnostic test which is used to find whether people have capacity or not, he does not clarify that section 3 is the statutory basis for the functional test, including the ability to weigh information about options, and he does not follow the cardinal principles (GH para 21; C para 33) in applying the functional test first and the diagnostic test second.
The sequencing of the tests matters because applying the functional test first is a means of delivering on the non-discriminatory objectives of the legislation. This sequencing seeks to prevent diagnosis being prioritised over social functions in the capacity assessment, and to avoid any assumption of incapacity on the basis of the person’s condition. Holman J also does not cite or apply relevant aspects of section 1 MCA, including the principle that unwise decisions are not in themselves evidence of incapacity, or that incapacity should not be found without first taking all practicable steps to help the person make the decision. It’s as if the fact of substantial agreement on the incapacity of an agoraphobic woman pushes parts of the legal framework into the background.
Second, he foregrounds biomedical knowledge over both legal and experiential knowledge in his application of the legal tests for capacity. He does this by focusing on the diagnostic aspects over the functional aspects of the tests. He also accepts the medical experts’ views rather than questioning them or contextualising them legally. And he ignores the pregnant woman’s knowledge of her pregnancy, her agoraphobia, and herself, information that could be relevant to the question of capacity.
Third, in making an anticipatory finding of incapacity he does not take the time-specific, or moment-specific, approach which is the generally accepted approach to capacity-testing. Agoraphobia becomes a condition which reaches into the future and compromises this woman’s decision-making capacity on home-related issues with no consideration of how her own practice, or other social interventions such as support for her (see here and here), could reduce such compromising effects.
3. Flattening a multi-stranded ‘best interests’ test into the avoidance of stillbirth at all costs
Before Holman J begins his assessment of what is in this woman’s best interests, he mentions one aspect of her wishes. The wishes of an incapacitated person are legally relevant as one of the key components of ‘best interests’ under section 4 MCA, and as Hayden J says in R (2020), and MacDonald J says in GH (2021), it has become more usual for the Court of Protection to respect an incapacitated person’s wishes and feelings, even if that means accepting significant clinical risks, including a risk of death. So Holman J’s reference to the pregnant woman’s wishes at this point in the judgment, as he is about to present his best interests assessment, is interesting and significant.
We are told that the woman “dearly wishes to give birth to a healthy baby, undamaged by the process of birth” (para 10). The purpose of telling the reader this is then revealed as the judge says that “the safety and wellbeing of the expected baby, as well as her own safety and wellbeing, are relevant to the consideration of the mother’s own best interests”. In two sentences, the legal test of best interests is framed by reference to birth as a damaging process, the baby-regarding wishes of the pregnant woman, and the safety and well-being of the expected baby as part of the pregnant woman’s best interests. The stage has been set for flattening the best interests test into an assessment of how to avoid stillbirth at all costs. It could have been a very different judgment if the judge had framed his assessment of best interests by reference to the full statutory framework, Aintree v James [2013] UKSC 67, other CoP jurisprudence, and a fuller consideration of her wishes and feelings.
The next interesting aspect of the judgment is this regard is its materialisation of the potential for an emergency as ‘the nub of the case’, so that a possible future crisis becomes the problem to be resolved in the here and now. The effect (whatever the intention) of making the case a matter of crisis is, as Harrington has said in relation to previous similar cases (2017, 80), to authorise more authoritarian management. Rather than actually manage contingency planning in the here and now so as to try and minimise the need for future authoritarian intervention, contingency planning becomes the means by which authoritarian intervention is delivered now, as the moment of crisis is brought forward.
The judge’s next step in figuring out what is in the best interests of this pregnant woman is to consider information about foetocentric risks, rather than risks in the round. Here again the judgment is being driven along by parts of the medical evidence rather than by the statutory framework, or by the situated experience of the pregnant woman. Interestingly we learn that the foetus-baby appears to be developing normally and that there is no particular reason to expect anything other than a normal delivery: “The mother is physically healthy, and currently there are no specific indicators that she may not have an uneventful, spontaneous labour and vaginal delivery… there is no case specific indication that any particular medical emergency will arise in this case” (para 12). But that information does not end up having much legal weight given the ultimate decision to proceed as if there is an emergency. Rather the legal weight is given to the risk of a need for an urgent transfer to hospital and to the risk of stillbirth or of a seriously damaged baby (para 13-14). The latter is reported as being one in 200 hospital births, with that figure doubling to one in 100 with cases which start at homebirths, drawing on the expert evidence of Professor Walker, the consultant obstetrician instructed by the Official Solicitor.
Having considered this information about the risks of a homebirth, the judgment then moves to a relevant legal rule, in the form of the precedent of East Lancashire Hospitals NHS Trust v. GH [2021] EWCOP 18 and the only case which is cited (paras 15-18) in this judgment. It is more usual in terms of legal method to elaborate the rules first and then to consider how they should be applied. GH similarly involved the application of statutory rules on capacity, best interests and related matters in the context of an agoraphobic patient whose labour was obstructed but did not wish to travel to hospital for the birth of her child. After an emergency hearing between 10pm and midnight MacDonald J ruled that the pregnant woman “could, in her best interests, be transported to hospital using reasonable and proportionate force if necessary” (para 15). In the event, the woman’s labour progressed and the baby was delivered safely at home before the court’s ruling could be implemented.
Holman J makes two uses of GH. He adopts MacDonald J’s account of the relevant law as part of his legal narrative, but by directing us to GH for a fuller articulation of legal authority (para 18), he decides that the significance of GH overall is “the need to anticipate problems of this kind and to face up to them as best one can in advance, even if that involves speculation and/or reliance upon statistics” (para 17). One of the advantages of such anticipation is that “the mother herself has been able to participate, and has participated,throughout the hearing, at a time when she is not in labour, pain or distress” (para 17). Her participation, including by video link during the hearing, has not resulted however either in the judicial elaboration of her values, wishes and feelings, except by reference to her wish to have a healthy baby, and her agoraphobia-related wish not to leave her home. And it has not resulted in a decision which is respectful of her knowledge, labour and wishes. She may have participated, but she is not very present in the judgment.
Having cited and considered the application of GH, Holman J’s next step is to identify four different actions, which may be necessary for a safe delivery of the baby to be, and decide whether they can be authorised as being in her best interests. Transfer to the hospital (1) for a planned delivery (2), the use of sedation (3), and the use of physical restraint (4) are addressed in turn, although a planned, rather than spontaneous, delivery is only addressed as an aspect of the transfer to hospital and not on its own terms. The assessment of these four actions in light of the different components of section 4 is however pretty uneven and lacking in detail. Holman J says:
“All the doctors who gave evidence in this case agree, the Official Solicitor now agrees, and I agree, that, for all the above reasons, it is preferable, and in the overall best interests of this particular mother and her baby, that she should give birth in hospital in a planned way around the EDD, but before she goes into spontaneous labour” (para 21).
We seem to have an example of ‘hidden law-making’ (Montgomery, Jones and Biggs 2011; Guilloud Doyle 2021) here as the apparent agreement of the medical experts and the Official Solicitor, and indeed the family members – everyone except the pregnant woman – becomes the basis on which the orders are authorised. The only time that Holman J refers to section 4 MCA as the statutory framework that should be guiding the court in determining ‘best interests’ in light of the evidence, is when he notes that the views of her partner and her mother – in favour of a hospital birth – are legally relevant since s 4(7) directs consideration of the views of family members (para 21).
Finally, at para 22, Holman J tells us what the pregnant woman wants for her childbirth. These wishes are legally relevant as part of what section 4 requires. Not only are they legally relevant, but the ‘wishes and feelings’ of an incapacitated person have come to be a primary consideration in best interests determinations at least since the decision of the UKSC in Aintree v James [2013] UKSC 67. In that case Lady Hale said (providing a statement which is often cited in incapacity cases and related academic analysis):
“[I]n considering the best interests of this particular patient and at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be.” (para 39)
There is not much evidence in this judgment of the judge in this case having determined best interests in this way.
Judges in the Court of Protection have recognised a trend towards respecting the wishes of incapacitated persons when it comes to medical treatment. Hayden J said in R (2020), a case concerning the authorisation of a caesarean section in best interests but against the wishes of a woman with fluctuating capacity:
“I am being invited to determine whether, if the adult in question loses capacity, a medical intervention can be authorised which is contrary to her expressed wishes, whilst capacitous. In virtually every application that comes before this Court, relating to medical treatment, the answer to the question posed here would be a resounding ‘no’” (para 33).
But the fact that the adult in question is pregnant means that Hayden J goes on to say:
“It is important that respect for P’s autonomy remains in focus but it will rarely be the case, in my judgement, that P’s best interests will be promoted by permitting the death of, or brain injury to, an otherwise viable and healthy foetus.” (para 63)
‘An Expectant Mother’, continues this pattern of making the childbirth cases go against the general trend of respecting the known wishes of incapacitated people. And it does so in terms which recognise that the order might also compromise her health and well-being.
Here Holman J says:
“The mother herself says that she would prefer to give birth at home, but she clearly expresses that that is due to her agoraphobia and fear of going out. I am satisfied that, but for her agoraphobia, the mother herself would opt for a hospital birth, as encouraged by her mother and partner.” (para 22)
In one sentence he turns her wishes into the expression of agoraphobia, and conjures up a woman who would opt for a hospital birth ‘but for her agoraphobia.’ The wish is trivialised by turning it into an expression of mental illness, and she is imagined not as she is – a whole person who lives with agoraphobia – but as someone who would opt for hospital birth if she was not agoraphobic. Her wish for a home birth is rendered delusional, the product of her agoraphobia, rather than the experience-based view of an agoraphobic person. The effect is to say that this is not the kind of wish that should be given legal weight. Not only is the agoraphobia pushing up against the legal presumption of capacity (in a similar process to the anorexia cases), it is also perceived in this judgment to be a reason for diminishing the value of the incapacitated person’s wishes.
4. Silencing the one to be restrained
Having decided that a planned hospital birth is in her best interests, the next legal question that is addressed is how much and what kind of restraint it is permissible to use in making a planned hospital birth happen. We are told that everyone is agreed on the appropriateness of chemical restraint, but not on physical restraint, although this time it is not clear whether that ‘everyone’ includes or excludes the pregnant woman. When the judge discusses the administration of sedation, he notes that it could be administered orally or by intermuscular injection, and he notes that the woman does not like needles but accepts the need for needles (para 25). He does not report on her views on the use of sedation itself, so we have no explicit consideration of her wishes and feelings on the use of chemical restraint.
On the use of physical restraint, the Official Solicitor, the woman’s litigation friend, opposes this unless an emergency arises, because it is more than is necessary for managing the situation. The judge considers the expert opinion given by both psychiatrists that the use of force could have harmful effects (para 28), as well as noting that it would entail “a severe infringement of the mother’s personal autonomy and liberty” (para 30). The use of force “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.” As Ms Sophia Roper points out for the Official Solicitor, “these are known risks from the use of force or restraint’ and they should “outweigh the more speculative and statistical risks, if the mother goes into labour at home but may then require an urgent transfer to hospital” (para 28).
Holman J also considers the practicalities that such a use of force would entail. Two personnel trained in restraint techniques would be made ‘discreetly available‘ on the occasion of the planned transfer to hospital. They would be permitted “if necessary, to use to use physical force and restraint to her arms and upper body (but not lifting or handling her by her legs) so as to get her into the vehicle and get her from the vehicle to the maternity area of the hospital” (para 29). Physical restraint would exclude being placed in a prone position, or pressure applied to her diaphragm or abdomen. They would not be permitted to use, and the hospitals did not ask for so-called mechanical restraint, meaning handcuffs and straps or belts, apart from a necessary normal maternity safety belt in the vehicle (see para 29). Holman J says that the mother is clear that she does not want an acute emergency to “arise in the home from which the mother cannot be rescued before some catastrophe occurs to either her or her baby” (para 30). But he does not say what the pregnant woman thinks is tolerable to endure in seeking to avoid this. We are not actually told at any point what her views on the use of chemical or physical restraint are.
In spite of all this, in spite of judicial recognition that the use of force and restraint carries known risks of harm to her, and will be a severe infringement of her autonomy and personal liberty, and in spite of the fact that there is no reason to believe that her labour will progress anything other than normally, she is subjected to an order that would move her into a hospital, have a planned delivery of her baby, take sedation and be physically restrained. Instead of capacity law empowering this woman, it has become a means for subjecting her to the threat of considerable restriction. This forcible restriction would not be legally possible if the legal foregrounding of the diagnosis of agoraphobia had not rendered her incapacitated. But even if legally incapacitated, such an order seems out of step with the Aintree v James oriented judicial trend to frame the determination of best interests by reference to P’s known wishes and feelings. It joins other Court of Protection decisions, such as the recent amputation case (see here and here) in keeping alive a pattern of going against P’s wishes and feelings in certain instances. But it does so in terms which do not even hear from P on the issue of restraint.
The authorisation of restraint in best interests here, including the possible use of personnel trained in PMVA techniques as the care plan indicates, is profoundly troubling. We have no evidence of what P thought about the administration of chemical or physical restraint. It could be that she had expressed a view earlier that she would prefer sedation and even a measure of physical restraint in the form of persons guiding her. It is worrying that we do not know. The possibility of working through some kind of non-binding advance expression of her wishes was there, and could have been engaged in order to make the best interests determination more accountable to her on the restraint issue. Such a process could do a better job of addressing the fraught question of how best to respect the wishes of patients who want treatment that they may later refuse when ill and distressed (see here and here).
Second, the orders (4&5) indicate that the lawfulness of any restraint, which amounted to a deprivation of liberty, was secured by any such deprivation being in best interests, and that any restraint used shall be the ‘minimum necessary’. But these references in the orders are the only place I can find that directly address legal questions about whether the restraint was rights-compliant under the Human Rights Act 1998 as distinct from MCA-compliant. The use of restraint as part of the care for those who are legally incapacitated engages the right to liberty under Article 5 of the ECHR because restraint may breach that right to liberty. A ‘best interests’ legal standard is not sufficient in itself to make a deprivation of liberty lawful, it also has to meet a human rights test of proportionality, by being the minimum deprivation necessary in order to achieve a legitimate objective – care of the person – for the deprivation. But the judgment itself is silent on the substantive question of how this legal standard of necessity is to be met in this instance. Holman J does mention that force is always to be the minimum necessary at para 27, but this goes to the question of how much force to use, not whether to use it or not in the first place. Rather it seems that the question of whether reasonable force is necessary is to be delegated to those who would implement it on the day. The judge does not elaborate any legal standards for deciding the issue. In the event, the question of how much restraint was used is left oblique as we learn through the postscript that “she received 2mg of Lorazepam orally” and that “although initially resistant, she was guided by staff and her family into the ambulance and no restraint was required or used”. As Suzanne Doyle Guilloud tweeted at the time, what do ‘guided’ and ‘received 2mg of Lorazepam’ mean? Especially in the shadow of an order authorising restraint?
Pressuring pregnant bodies, expanding the risk of stillbirth
There are other lines of incapacity cases in the Court of Protection, such as the anorexia cases (Cave and Tan 2017, Clough 2016), where even if the use of force was once authorised in order to feed a patient against her wishes, the trend has clearly become one of respect for the patient’s wishes and feelings even in a context where she might die. The effect of this childbirth case is to say that the prospect of a stillbirth is an even worse scenario than the prospect of an anorexic patient dying. Death through self-starvation is clearly a harm to be avoided as part of best interests determinations in the anorexia cases, but not at the cost of subjecting the anorexic woman to forcible treatment which violates her sense of self and could aggravate her illness. But here stillbirth becomes an outcome which must be avoided at all costs, including subjecting the woman to forcible removal to the hospital, a planned delivery, and chemical and physical restraint.
Clearly foetal life is ‘not nothing’. Not to this woman. Not to the public at large. Not to law, given recognised public interests in supporting pregnancy. Not to an intersectional feminism which has long fought for respect for life’s reproduction. But separating out the legal interest in foetal life, turning it into the pregnant woman’s wish for a healthy child, and enforcing it against the life that gestates and births that foetus into a child, is to do legal violence to the wonder of entangled reproductive lives. There are lots of ways to respect foetal life by supporting pregnant people and not turning foetal life into an oppositional means of degrading a pregnant person’s life.
There is a problem with the way that the cited 1% risk of stillbirth has expanded on the pages of the judgment through the legal moves outlined above. Other important concerns have been minimised as pressure on the pregnant woman is increased with the threat of physical and chemical restraint in non-emergency circumstances and in the absence of the woman’s advance agreement. This case participates in the devaluation of childbirth as reproductive labour by undermining the pregnant person’s knowledge, wishes, feelings and values. By bringing the risk of an emergency childbirth forward in time it squeezes the legal space for a more care-ful and less coercive childbirth in the here and now. By discussing the legal moves through which this process happens perhaps we can redirect them too.
Ruth Fletcher is Senior Lecturer in Medical Law at Queen Mary University of London. She is interested in questions of reproductive justice and you can access her publications here. She tweets @fletcher_ruth
Photo by Cassidy Rowell on Unsplash
Promoting Open Justice in the Court of Protection 