By Jakki Hanlon, 3rd November 2021
Before today, I had only ever read written judgments from the Court of Protection, so I was very grateful to Celia Kitzinger for helping me gain access at the very last minute to today’s hearing (Case 13837302 before Mr Justice Hayden on 28th October 2021 – see also Celia’s blog post here).
The decisions of the Court of Protection on reproductive rights and healthcare are important building blocks in my research into disability and reproductive justice. Reproductive justice looks at more than the rights we have on paper; it looks at the systems and structures of society and the ways in which they can work to restrict, or even completely disregard those rights. One of the ways in which our reproductive rights can be restricted is if a court, such as the Court of Protection, decides that we lack the capacity to make decisions for ourselves and decides what actions would be in our best interest. In this case, P was expressing the wish to have a VBAC (vaginal birth after caesarean section) against the wishes of her doctors. She is not the first and will not be the last woman to request a VBAC against her doctor’s wishes, but because of her mental health status, her capacity to make this decision has come before a court.
Courts are a very public way of making decisions about people’s lives, so any reporting of cases will rightly contain no details which can be used to identify the person. This means that their voice and personality are often obscured in the ways cases are reported. Observing a case allowed me, for the first time, to get to hear the voice of P and what her hopes, fears and preferences are, in a way that has not been possible before. The participation of P in proceedings today would, as Mr. Justice Hayden noted, not have been possible to the same extent before Covid regulations took the court online. Yet her participation was a crucial part of proceedings because it gave life to her concerns about being awake while giving birth, adding layers of complexity to what could be considered P’s best interests because she raised the importance to her of bonding and the symbiotic relationship between mother and baby. To her, being awake and with her partner are fundamental to establishing that relationship. Without her ability to participate, how could the court have recognised this?
One of the other important conclusions I was able to make from observing the hearing today was the importance of time in ensuring that P has proper access to justice. Pregnancy by its very nature is a timebound experience and unpredictably timebound; nature does not stick to the rules we try and impose on her, and the justice system is no exception to this. Time is needed to ensure the process of justice works properly and there is not much left. This raises questions about the practicality of dealing with matters of pregnancy in the Court of Protection if it is not given the resources to do so and if maternity services should have better care pathways available to disabled patients which better anticipate their needs, capacity or not, in a less confrontational way.
Jakki Hanlon is a recent graduate of the Master of Laws degree (LLM) in Gender, Conflict and Human Rights at the Transitional Justice Institute, situated within Ulster University, Belfast . She tweets as @BarefootJakki