By Rebecca Brione, 16th November 2021
On 28th October this year, there was a first hearing of the case of a pregnant woman with schizo-affective disorder who wanted a vaginal birth (COP 13837502). The Trusts caring for her wanted to carry out a Caesarean section under general anaesthetic. The case was brought as an emergency hearing but in the end was not resolved that day, being adjourned to allow for more evidence to be heard on the woman’s capacity and to support any best interests decision. You can read Celia Kitzinger’s blog about the hearing and reflections from a first time observer.
When the hearing was re-listed, it turned out that it was going to be held in person only (albeit with witnesses able to dial in) at the Royal Courts of Justice. This obviously has the severe disadvantage of restricting observations to those who are able to be in London at short notice. In addition, the case was going to be heard by Mr Justice Holman, who had earlier this year made the much-commented-upon ruling that a pregnant agoraphobic woman could be restrained and taken to hospital against her will. It was therefore with some dread that I mounted the steps to the Royal Courts of Justice buildings for the first time. I was glad to have other observers alongside me, from the law firms Bolt Burdon and Kemp, and Irwin Mitchell, and I give my thanks to (ex)-colleagues at Birthrights for corralling strength in numbers!
In a relatively empty court room we were quite noticeable, even in our unobtrusive positions at the back. Mr Justice Holman asked right at the start whether we were members of the public and, on being told yes, said that we were “incredibly welcome”. He turned his attention almost immediately to making sure that we knew that there was a “transparency order in place” (although actually getting hold of the transparency order has been more challenging). He returned to check our understanding that we could not identify the woman at the centre of the case in any way periodically throughout the hearing.
The early minutes of the hearing were spent checking who would be present during the hearing. Counsel for the woman at the centre of this case – via the Official Solicitor (OS) – Debra Powell QC, said that the woman, SM, predominantly referred to as “the mother” (because Mr Justice Holman felt it was “more human”) was “not feeling terribly well” and “currently does not wish to participate”. Mr Justice Holman made sure to check that she knew that she could if she did wish to, and that technology was in place should she change her mind in the course of the day. There was some back and forth about availability of witnesses. Whilst the consultant psychiatrist was ready and waiting to give evidence, it initially appeared that the consultant obstetrician would not be available until the afternoon due to clinic duties. Holman J commented that that was “terribly unfortunate” – that the case was “all really about the evidence” and could we “bend every reed to get” her there. Indeed, could it be made clear to her that “if she should say I can speak to you now for half an hour, we would instantly interpose her”. With moves underway to communicate this to the obstetrician, the hearing began.
Despite our welcome, Mr Justice Holman declined Counsel for the Trust’s (Conrad Hallin’s) suggestion to “briefly open” the case, getting straight into hearing evidence from the psychiatrist, Dr D, appearing by video-link. I am grateful for Celia Kitzinger’s blog which gave me sufficient background to feel comfortable with the facts – I might have struggled otherwise.
The Court heard first from the consultant psychiatrist, Dr D, who had treated SM on and off for a number of years. He recounted a complex history with multiple in-patient admissions and said that her “her mental state is highly fluctuant”, “especially when relapsing”. Counsel for the Official Solicitor asked about very recent evidence that SM’s mental state had deteriorated. The Court was told that SM’s mental state was “quite changeable on a day-to-day basis”, “better than in the community…but that doesn’t mean it’s not fluctuating”. On being asked about psychotic ideas, Dr D said that “she’s not expressing ideas, but if you ask her about them they’re still there”. These included beliefs that her organs might be stolen if she had a C-section, which she had shared with other women on the ward, and the belief that “if the baby was taken from her the baby would die”. Dr D said, on questioning, that he considered these to be both “emotional statements” and “delusional beliefs”, saying “I do think she’s psychotic at the moment”. Counsel for the OS asked about possible trauma from SM’s previous pregnancy, with Dr D describing “a very complex pregnancy”involving intensive psychiatric care, attempted vaginal birth followed by C-section and a subsequent removal of the baby from SM – commenting this was “all potentially traumatic”.
Counsel for the OS then turned to Dr D’s views on the likely impact of mode of birth on SM. Dr D said that it was “hard to predict” the impact of mode of birth on SM’s mental state, saying “It would be the distress, I think, that would be the main factor”. He said that SM was now more accepting of a C-section for the baby’s health, and expressed that on the basis of her recent history “I think that she would struggle to tolerate monitoring [during vaginal birth] as well as the process itself”. In answering Counsel for the OS, and in response to clarificatory questions from Mr Justice Holman, Dr D said that he felt that a C-section under regional anaesthetic, “if that’s [possible] and safe” would be most beneficial for her, and noted that the idea of having contact with her baby is very important to her, understandably so”. Counsel for the OS noted that in the previous hearing, SM had asked “if she were not awake, how would she know it was her baby?”.
In the course of this evidence, it became apparent that there had been two major changes in the situation since the first hearing a week ago. Firstly, SM’s baby was now in the breech position. Secondly, as expressed by Mr Justice Holman, the Trust was now “not necessarily resistant to doing some form of spinal anaesthesia on the day if that is her express preference and she is cooperative”.
Helpfully, the obstetrician, Dr C, had made herself available so that her evidence could be heard straight after Dr D’s. I will say upfront that whilst both witnesses were very clear, I was particularly impressed with Dr C (as was Mr Justice Holman), and her thoughtful and careful consideration of evidence, risk data and possible care plans for SM as an individual. She had provided an updated witness statement to the Court on 2nd November (which I had not seen), two days before this hearing.
Counsel for the OS first asked whether Dr C had had an opportunity to look at SM’s obstetric notes from her first birth. It emerged (via two stages of evidence-giving – a later clarification amending initial evidence given) that whilst “there had been a spontaneous rupture of membranes”, and syntocinon used to “kick-start contractions”, SM had experienced about 3.5 hours on a drip, experiencing “mild tightenings” but not “real contractions”. SM had had a family member with her at all times to manage possible agitation. She gave birth by C-section because the baby was assessed as being in an oblique position – there was “no hugely stressful situation”. Counsel asked about SM’s contention that she had previously had a Caesarean because the baby’s cord was around its neck, with Dr C commenting “that might have been the case but it was not the indication for Caesarean section”, explaining it is not uncommon. Dr C also noted that at that point SM had been discharged into community psychiatric care and “we are currently in different times”.
Dr C outlined the particular medical and obstetric risks in play, painting a complex picture including essential hypertension, gestational diabetes, anti-coagulation medication, heavy smoking and breech presentation. She said SM was “very complex obstetrically without her mental health issues”, and whilst her physical health conditions were well-controlled, national guidelines would suggest that birth from 37 weeks could be considered. She described a multifaceted, considered position on the overall medical picture – there is “no algorithm I can put risk factors in” – but the Trust was proposing a C-section one week hence, when SM would be 38 weeks’ gestation.
Dr C explained that “a variety of factors have been placed into that date”, including increasing levels of treatment for some of SM’s health conditions, the fact that a planned date would allow management of SM’s anti-coagulation regime which otherwise “can have an effect of the ability to offer regional anaesthesia”, and that a fairly early date would be “safest for mother and baby”. The particular date was also influenced by Dr C’s view that “it is very clear to me that to reduce agitation for this patient, it is ideal for there to be familiar faces” and that on the proposed date” [Dr C] perform the elective Caesarean sections”.
There was then a short exchange about capacity between Counsel and the Judge. Mr Justice Holman then said that there was a “currently a balance of evidence that SM lacks capacity” and asked about the likelihood of SM regaining capacity in the near future, thus the extent to which “one may try and wait”…and “seize the moment when she may have capacity” over, say, the next ten days. Counsel for the OS responded that there was “no evidence on which one could reasonably presume” SM would regain capacity in that timeframe and that they were “content to proceed on the basis” that SM lacked capacity. Mr Justice Holman confirmed “it’s a best interests decision then”.
Returning to evidence hearing, Dr C said that there was “no reason why the patient should not have regional anaesthesia”, and was then asked about the potential risks and benefits of vaginal versus C-section birth. Dr C noted the risk of scar rupture, “but also the risk of requiring an emergency C-section and the time frame under which we would be required to proceed”. She said that following a previous C-section, about 80% of women would have vaginal births of some form, with about 20% having Caesareans. She set out very clear percentage risks of scar rupture, differentiated by during pregnancy (0.1%), during labour (0.3-0.5%) and if labour were induced (0.8-2.4% depending on induction method). Mr Justice Holman commented it was “obviously a significant risk but of course it’s a low risk. I thought it was higher.”
Dr C went on to confirm that the baby had been found to be breech three days ago and was unlikely to move. On this discovery, SM had said she “would not consider” attempting to manually turn the baby, and similarly Dr C would not advise it in this case. When asked by Counsel for the OS whether “if you had a patient with this constellation of risks, but no mental illness, would you be advising her to have a C-section“ she gave an unequivocal yes. She also confirmed that SM had (in Counsel for the OS’s words) “quickly become more accepting of the recommendation for C-section when learning the baby was breech” and “she would want to do anything to keep her baby safe”. There was some discussion of what Dr C’s advice would be if the baby turned head-down for a woman with the same physical risk factors as SM, with her describing counselling for choice between recommended early induction or C-section – “no one definite way is safer” (I particularly welcomed how Dr C separated out of maternal and foetal risks). However, she then described concerns about SM’s ability to tolerate regular monitoring during labour, and needing to be in one place for a prolonged period of time. She described explaining to SM that “vaginal birth can take 12 – 16 hours…. she didn’t know that was a potential timeframe”, and that SM was often agitated and eager to leave by the end of her obstetric consultations of “not past half an hour”.
From this point on, the decision of the Court seemed to be more or less made. Mr Justice Holman asked Dr C “can I have a high degree of confidence that if there is a Caesarean next Thursday, you will be the one who performs it?”, and was told yes. Shortly after we adjourned for lunch and Counsel discussions.
On return, it was immediately obvious that the case would be finished that day. Counsel for the OS stated that “The Official Solicitor does not oppose the making of the order in the terms that have been sought” and “there is more than sufficient [evidence?] to displace the statutory presumption of capacity”. Counsel went on to say that it was “absolutely clear that whilst the baby remains in breech it is in her best interests to have a Caesarean with a spinal block if possible….that is what she, herself, wants”. Mr Justice Holman reflected that it was a “paradox that the coincidental fact that the baby has gone into breech…may have the effect that we have congruence with [SM’s] own subjective wishes, however capacitous”. The Official Solicitor still considered a C-section in SM’s best interests if the baby moved, albeit this would be a “more nuanced” call. SM had again been offered the opportunity to engage but did not wish to.
The Court then moved in short order onto the details of the order, and the Judgment. As observers, our understanding was much aided by Mr Justice Holman himself printing out copies of the order. The Court ruled that a Caesarean should be carried out on the proposed date, by Dr C if at all possible, using regional anaesthesia if this is what SM wishes at the time and she “is cooperative”. The lower preference options allowed for (2) C-section under general anaesthetic if SM wants “or is uncooperative with regional anaesthesia”. “Minimum necessary” sedation and restraint would be lawful (3) “If SM is uncooperative….and sedation and restraint is necessary”. The judgment is not yet available on BAILLI but will be posted here as soon as it is.
What is interesting to me as an observer was the mismatch I perceived between the focus of the narrative judgment as given in Court, and the nuance and flavour of the evidence that had been heard before. Whist the ruling’s content was not surprising given the evidence, in his dictation Mr Justice Holman emphasised scar rupture – “a low risk…However if it does occur, the potential risk to the mother or baby is severe” as a defining factor, given that (as ever in these cases) SM wished “a healthy baby undamaged by the process of birth”. Possibly for him this was the deciding factor in making the Court’s decision. However, for me it was a very one-dimensional account of the risks and benefits considered in relation to mode of birth and anaesthetic options, and I am not clear that this phrasing represented the evidence that I heard from the clinicians who did seem to be genuinely focussed on SM as an individual and their view of her best interests.
I also think that for me the case highlighted again the need to ensure that – as was the case here – the Court is informed by clear and thoughtful witness evidence. Mr Justice Holman, ahead of hearing from the consultant obstetrician, had commented that the baby “won’t come out from a breech, will it?”, implying surgery was unavoidable. These misconceptions about birth must be challenged to ensure that the Court can make fully informed decisions.
I very much hope that when the Judgment is published, it comes with a postscript to tell us a little about how SM is doing. It seemed to me that the Court did genuinely try to make a decision in her best interests – Mr Justice Holman asked Dr C to “pass on the sincere good wishes of the Judge” to SM – and whilst there was not a huge amount of exploration of her views on vaginal versus C-section birth, the evidence that was heard was fairly unanimous and did come from clinicians who seemed to have a reasonable relationship with her. However, observing in person did leave me very conscious of how intimidating the process and the formalities are, and how hard everyone involved needs to work to ensure that the Court has good quality, timely and reliable evidence before it both on women’s individual wishes and on pregnancy, birth and maternity care options to inform its decision-making.
Rebecca Brione is a PhD researcher at King’s College London in the Sowerby Philosophy and Medicine Project. Her work aims to conceptualise harms in non-consented intervention during maternity care. She blogs @RebeccaBrione