By Celia Kitzinger, 3rd November 2021
A pregnant woman with schizo-affective disorder wants to try for a vaginal birth. She says she’ll accept a c-section if necessary (she had one with her previous baby), but would like an epidural, so that she can be awake for the delivery. She badly doesn’t want to have a general anaesthetic.
The applicant Trusts – the trust responsible for her mental health care and the trust responsible for the proposed obstetric treatment – have applied to the court for a declaration that she lacks capacity to make her own decision about the birth of her baby, and to authorise a c-section with general anaesthetic. They were jointly represented by Conrad Hallin.
Although this appeared on the lists (Case 13837302 before Mr Justice Hayden on 28th October 2021) as an ‘urgent’ hearing, it was not an emergency. She’s only 36 weeks pregnant, and her baby isn’t due until 25th November 2021, more than four weeks away.
What most surprised me at the hearing was that the judge seemed to be on the verge of authorising the c-section and general anaesthetic in her best interests. He gave a strong steer to counsel before the lunch break that they should “seriously think about” his proposal to make a declaration that she lacks capacity and that a c-section with general anaesthesia is in her best interests.
As it turned out, in large part due to the forceful and compelling advocacy of her counsel via the Official Solicitor (Debra Powell QC), the judge adjourned the decision for another day, and another judge.
The case will now be heard before Holman J in Court 49 at the Royal Courts of Justice on 4th and 5th November 2021. My understanding is that it will not be possible to watch it via video-link and that anyone wanting to observe it will need to go to the court in person.
Capacity and decision-making
If the woman concerned (SM) has capacity to make her own decisions about childbirth and delivery, then the court has no jurisdiction over her, and she is free to make her own choices, even if others consider them unwise.
Pregnancy does not constitute an exception to the principle that a capacitous adult has the right to refuse medical treatment. We have blogged before about a case in which a pregnant woman (detained under the Mental Health Act 1983) was refusing blood tests and blood products. She was found to have capacity to make that decision.
This case came to court without sufficient evidence as to whether or not SM has capacity to make her own decision.
The parties had made an application to vacate the hearing because the psychiatrist who had assessed SM had been taken ill, and was not able to come to court to give evidence and be cross-examined on that evidence. The trusts and the Official Solicitor had agreed that under those circumstances the hearing should be adjourned, but Mr Justice Hayden called it in nonetheless – saying at the beginning of the hearing that “SM needs a decision now – that’s why it’s urgent”.
There was some delay after the judge joined the hearing as the heavily pregnant SM appeared on screen, with someone in PPE assisting her in muting her mike, and then switch off her video.
Counsel for the trusts began by outlining SM’s medical history.
A perinatal mental health midwife had raised concerns about SM’s mental health on 17th September 2021, but at that time there had been no bed available to admit her. She was eventually detained under s.2 of the Mental Health Act on 7thOctober 2021. Counsel for the trusts read from the records describing her gestational diabetes and essential hypertension (though she is not at risk of pre-eclampsia) and the “small but serious” risk of uterine scar rupture from her previous c-section.
On 13th October when members of the health care team attempted to discuss c-section with her she became “agitated”, and then “threw down the consent form that was being used as a template for discussion and stormed out of the room”. In the view of the trust, this is “a clear demonstration of the difficulty that may be faced if there were an emergency during vaginal delivery”, i.e. she might not be able to engage with the consenting process. The health care team reached the view at that point that she “does not have the capacity to be supported through attempted vaginal birth after previous caesarean section”.
In a subsequent discussion a few days later (I think with a consultant obstetrician), she seemed “less agitated” and “readily agreed to have a c-section”. (This seemed to be part of the evidence that she is “inconsistent” in her decision-making.) On this subsequent occasion she “apologised for her previous behaviour” and “explained that she found it anxiety-provoking to be handed consent forms”. She showed an “inability to remain focused” on information relevant to the decision that needed to be made and “could not tolerate discussion of risks”. She can also become hostile. It was decided that she “didn’t have capacity” and “was not a safe candidate for vaginal birth”.
Mr Justice Hayden summarised the evidence on capacity: “The consistent picture is that while this mother can speak to some degree reflectively about her pregnancy, when she’s asked to evaluate the risks involved she draws back, and doesn’t want to engage”.
“An insightful observation, My Lord,” said Conrad Hallin. “That is indeed the tenor of the evidence”.
He added, however, that each time the risks are discussed there is somewhat less agitation, and that “when she’s presented with small pieces of information with no pressure of decision-making, she’s likely to be able to assess the risks”. This raises the possibility that – although SM may lack capacity to make her own decision about a c-section at the moment – she could be supported and helped to regain it. If so, this engages a fundamental principle of the Mental Capacity Act 2005.
“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” (s 1(3) MCA 2005)
Nonetheless, the trusts’ position is that even if she were to regain capacity to make her own decision, “she would be likely to lose capacity again, with the pressures of either a c-section or spontaneous delivery. So if she were found in the moment to recover capacity, we would ask for an anticipatory declaration under s.15, combined with the inherent jurisdiction for any associated deprivation of liberty, as in the case of Guys and St Thomas’ Trust”.
In the Guys and St Thomas’s Trust case (GSTT & SLAM v R  EWCOP 4) Hayden J had made declarations under s.15 MCA and pursuant to the inherent jurisdiction of the High Court to the effect that P currently had capacity to make decisions regarding her obstetric care and the delivery of her baby, and that in the event that she came to lack that capacity, it would in her best interests for care and treatment to be delivered in accordance with the care plan before the court including, if required, to deprive her of her liberty. (There is a useful summary and commentary on this case by Alex Ruck Keene here, and an academic analysis of this and similar cases of anticipatory and contingent declarations, by Sara Fovargue here [not open access]).
So even if SM were to be found, today, to have the capacity to make her own decisions about the mode of delivery of her baby, the trusts “would still ask Your Lordship to make declarations under s.15 as there’s a significant risk that she’d lose capacity at the material time”.
On behalf of the trusts, Conrad Hallin was clear that SM’s capacity would be continue to be reviewed on an ongoing basis and if, at any point, she were found to have capacity to make her own decisions, then of course it would be her right to do so.
Mr Justice Hayden pointed out that this would remain the case even if he were to make a declaration today to the effect that SM lacks capacity and that a c-section is in her best interests.
“There’s the possibility that the continuing breakdown of the constituent parts of the decision-making may, if persevered with, enable her to make an ultimately capacitious decision, evaluating the wide canvas of risk. If I were to decide today that she does not have capacity, that would not in any way inhibit you going forward to see if it’s possible for her to do capacitous decision-making. If she did not, you would already have your declaration. If I don’t make a declaration today, then you would have to come back to court…. I’d be making a declaration that she lacks capacity to understand, retain and weigh the factors relevant to making a decision. The planned continuing work to help her to achieve that capacity would continue. In the event that she does achieve that capacity, her own decision is determinative. In the meantime, I will declare where her best interests lie”.
The judge had his eye on the clock and asked counsel for SM for “think seriously about” his proposed way forward over the lunch break.
But it was a proposal with which neither counsel seemed satisfied. Counsel for the trusts responded: “That would still leave my clients wanting an anticipatory declaration, akin to Guys and St. Thomas’”.
Counsel for SM (Debra Powell QC) stated firmly, “I think we should adjourn for a multitude of reasons. If we break for lunch now and then I present my reasons, we’re not going to have time to hear the case in any event.”
After some courtroom banter (“You underestimate me, Miss Powell”/ “I don’t, I really don’t My Lord. Experience has taught me that would be unwise”), the hearing was adjourned for lunch.
Official Solicitor’s Position
After the lunch break, Debra Powell QC, acting on behalf of SM’s best interests via the Official Solicitor, gave reasons why the case should be adjourned for the following week.
A consultant psychiatrist who has conducted an assessment of SM’s capacity is needed in court, so that they can give evidence and so that the evidence on capacity can be tested via cross-examination. “On discovering that [the assessing psychiatrist] was not available this week”, said Debra Powell QC, “the Official Solicitor was opposed to the case being listed this week, but the applicant went ahead anyway and secured this listing.”
There were other doctors available in court to give evidence on capacity today, but “no consultant psychiatrist who has recent knowledge of SM”. There is a consultant psychiatrist who has “historical knowledge” and another whose knowledge of her is recent, but he is a registrar and “it is not appropriate to get someone less than a consultant to give evidence”. The treating psychiatrist is reported as having said that there’s been a recent overall improvement in her mental state.
Moreover, s. 1(3) Mental Capacity Act 2005 says that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success” and the evidence in this case is that “all practicable steps have not been taken to enable her to make a capacitous decision of her own… A few more days should be given to that, to enable that process to be completed” (Debra Powell QC)
“I get your point about s. 1(3)”, said the judge, “but sometimes it’s possible to overcook- Is all this NECESSARY to decide capacity?” Debra Powell QC responded sharply and unequivocally:
“In my respectful submission My Lord, oral evidence from a consultant psychiatrist who has recently assessed her capacity is necessary and further work to take practicable steps to see if she can make a decision herself is necessary.”
There was also an ongoing unresolved question – raised by both Conrad Hallin earlier, and by Debra Powell QC now – about whether SM had previously had an epidural or a general anaesthetic with her previous caesarean delivery. (The health care team seem not to know, and are unwilling to rely on SM’s report.) Hayden J expressed some impatience (with both advocates) at this line of inquiry (“What we’re dealing with is a question of capacity for this pregnancy for this woman, with this partner, at this stage in her life”) but both saw it as pertinent to the current decision.
Debra Powell QC says that SM was first in contact with mental health services at the age of 14 and has a long psychiatric history of frequent admissions, some voluntary and some under section. It seems that SM was detained for about six months around the time of her previous delivery (though dates were unclear). SM says that this previous delivery was an attempted vaginal delivery, which had to be converted to a c-section, but she had the section under epidural. She draws on her previous experience in expressing her views this time.
“There’s a recognition from this lady that she coped with it [a caesarean under epidural] previously. There’s a difference between assessing the likelihood of a first-time mother being able to cope with vaginal delivery and epidural and a second time mother who’s already gone through that process once.” (Debra Powell QC)
“What are her wishes now, do you say?” asked the judge.
Counsel quoted from an attendance note from the solicitor acting as an agent for the Official Solicitor. SM had told her she’d be willing to have the c-section if necessary, but that she wanted her fiancé there for the birth – which she had been given to understand would be possible if she were having a c-section under epidural, but not if she were having it under general anaesthetic. (“Are you sure about that?”, asked the judge – it seemed so). She wanted the epidural in part so that he could be there “to cut the cord”.
SM would “not be too pleased about an epidural – she says it causes paralysis”, but when asked about her preferences for delivery she would most like to have a vaginal delivery with her partner there, then her second choice is a caesarean with an epidural and her partner there, and her least favoured option is a general anaesthetic with a caesarean. “When asked why it was important for her to be awake during the procedure, she said: ‘it’s an important day isn’t it’…. An eloquent and perhaps heart-breaking understatement”. (Note, it was not explicitly stated, but I got the impression that care proceedings may have been under way.)
At this point SM herself asked to speak to the court. She talked about her previous delivery (“the cord was wrapped round his neck and if I’d pushed I would have strangled him”) and described having the c-section “under epidural” with her Mum there. She explained that it was important to have someone with her for the birth because “With nobody there, how do you know it’s my baby?” She acknowledged her mental health problems: “When I get poorly, I have to come in to this building and I recover slowly and then I get out and back into the community. Unfortunately, that’s part of my life.” She also referred to what I take were care proceedings, describing how she and her partner had “bought baby clothes and toys and nappies and now they’re saying I’m not fit to be a mother”.
Mr Justice Hayden was (as always) kind and supportive in listening to what she had to say. He described her as “a courageous young lady”. He summarised by saying, “So you’re wanting me to do as much as I can to see if it’s possible to have a….” I’m not 100% sure how the judge ended that sentence, because SM spoke over him, ending the sentence herself with the words “a natural birth”, but I think he may have used the same words.
Having heard from SM, the judge said he didn’t need to hear any more from her counsel. And he seemed to have shifted his position from the view I had felt was implied earlier in these proceedings. He said:
“I think this is potentially a case about best interests as well as about capacity. I don’t think it would necessarily flow that if I found her to be incapacitous- I don’t think I would necessarily assume that the best interests decision was as straightforward as I did when I read the papers. Because as she articulates quite persuasively, she’s not as poorly now as she was last pregnancy, and that assertion is supported by the evidence you’ve taken me to, and her reasons as to why the birth process is important to her is also compelling. So the decision is not purely medical. It requires looking at the individual mother in the round. So it’s not axiomatic that if I find she lacks capacity that a caesarean is in her best interests. So I’m going to submit to the inevitable and adjourn the case.” (Hayden J)
This isn’t an emergency – her baby’s due date is still four weeks away. The adjournment will give time for another psychiatrist to be instructed to assess SM’s capacity, and give oral evidence in court. And it will give more time for SM to engage with the discussions about risks and benefits of different modes of delivery, perhaps enabling her to develop capacity to make this decision. It will also permit investigation of what in fact happened in her previous labour, insofar as this may be relevant to the current decision about general anaesthesia vs. epidural.
Mr Justice Hayden is well-known (and celebrated) for his robust defence of autonomy and self-determination. And yet in this instance I got the impression that, faced with a decision about a pregnant woman, his protective instincts had (temporarily) overwhelmed him. I am relieved that he adjourned the hearing rather than precipitously (in my view) declaring SM to lack capacity and making a premature decision about her best interests.
The Open Justice Court of Protection Project has published a whole series of blogs relating to pregnant women in courts. In a case this year before Mr Justice Holman (back in May 2021), a woman with agoraphobia who wanted a home birth was deemed not to have capacity to make decisions about the location of the delivery of her baby. The court ordered that it was in her best interests to be conveyed to hospital (with restraint if necessary) before her due date and to be induced or to have a caesarean section. This led to some criticism in the media as well as from birth rights activists and some midwives, amongst others. (See also this blog about a court-authorised caesarean section for a woman with schizophrenia.)
The case will now be heard, in public, by Holman J on 4th -5th November 2021 in Court 49 in the Royal Courts of Justice. Observers can attend in person and we plan to cover this case in a future blog.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia