By Jordan Briggs, 13th December 2021
This hearing (COP 1385977T), heard over Microsoft Teams before Mr Justice Moor in the Royal Courts of Justice on Thursday 9th December 2021, concerned whether an elective caesarean was in the best interests of a heavily pregnant, non-capacitous young woman (MP) who was detained in a hospital in the North of England under the Mental Health Act 1983, s3.
The outcome, consistent with three clinical reports and MP’s own wishes, was that an elective caesarean was in MP’s best interests and an order was made to that effect.
In a short introduction at the beginning of the hearing, Counsel for the applicant trust outlined the case.
MP is in her twenties, and in her thirty-seventh week of her first pregnancy.
She has no history of previous mental illness but has recently developed acute mania, psychosis, aggression and lack of insight. For this reason, she was detained in a psychiatric hospital in a city in the north of England under the Mental Health Act 1983, s3. Although MP has improved somewhat since admission, she remains unwell.
MP also suffers from gestational diabetes. This has caused her unborn child to grow very large (in the 97thpercentile).
Against this background, there have been several discussions about how MP should deliver her baby. Two consultant clinicians have agreed that MP lacks capacity to decide on mode of delivery, and further agree that an elective caesarean is in her best interests. This is because, given the large size of the baby, a caesarean of some sort would likely be required, and an elective caesarean is preferable to an emergency one because attendant on the latter are heightened risks of maternal haemorrhage and mortality.
The hospital’s Clinical Director and Lead for Obstetrics further recommended that it was in MP’s best interests to undergo this caesarean under a spinal anaesthetic (a ‘spinal block’) as opposed to a general anaesthetic. A spinal anaesthetic, which is administered by injecting drugs into the subarachnoid space near the spinal cord, allows the patient to remain awake during the caesarean. Such consciousness is preferable to the unconsciousness induced by a general anaesthetic because it minimises risks of maternal vomiting and infant drowsiness, and enables the mother to see and feed her baby sooner.
Both MP and the father of her baby initially desired a natural (vaginal) birth. However, on being told that clinicians felt she should undergo an elective caesarean with a spinal block, MP (and now the father too) adopted the same view. Accordingly, the application before the court was rather straightforward: for the court to make the order sought by the applicant NHS Trusts, permitting them to perform a caesarean under spinal anaesthetic, with permission to give her a general anaesthetic if necessary (or if she requests it).
The start of the hearing was delayed by about 15 minutes due to difficulties with getting everyone logged on and (in particular) sorting out the arrangements for the interpreter and MP’s partner, the father of her child, who was joining the hearing as a litigant in person.
MP herself was represented (via the Official Solicitor) by Andrew Hockton.
There were several members of the Trusts in attendance and ready to give evidence at the beginning of the hearing. However, and with the consent of all parties, the judge released them all except one – the hospital’s Clinical Director and Lead for Obstetrics (Dr A).
Counsel for the hospital Trust opened the evidence-in-chief by asking Dr A why a caesarean was recommended. However, as the judge pointed out, this evidence was already in the witness statement, which he had read and accepted. In light of that, counsel for the hospital Trust had no further questions.
Counsel for MP via the Official Solicitor briefly cross-examined Dr A on various matters. These included whether she herself would be administering the spinal block to MP (she would not: she wouldn’t be available on the day), the circumstances in which administration of a general anaesthetic may become necessary (if MP became anxious or distressed during birth; if the spinal block did not work; or if MP requested it) and how MP’s anxiety would be assessed during birth (physically and clinically, taking account of MP’s demeanour).
The judge briefly intervened, asking whether a spinal block was the same as an epidural. Dr A replied that they were not quite, although the two are often conflated. (An NHS leaflet explains the difference.) With that, her evidence concluded.
Moor J then asked whether MP’s partner had any questions or comments. MP’s partner responded that, despite originally favouring a natural birth, he now supported the clinical recommendation that MP undergo an elective caesarean facilitated by a spinal anaesthetic. The judge received this warmly.
Participation of MP
There was then a short break. Observers and other parties were asked to leave the video-platform so that Moor J could hear from MP herself, who
The judge had agreed to meet with MP despite saying at the outset that he was “slightly uncertain as to the purpose of the meeting”. He pointed out that what she said could not be “evidence”. Counsel for the Trust said “I don’t propose you gather any evidence from her, but listen to her wishes and feelings”.
This exchange has its origins in the recent Court of Appeal case, Re AH  EWCA Civ 1798 – also blogged about here: “A life-sustaining treatment decision from Hayden J in the Court of Appeal” and “The most complex covid patient in the world”). In Re AH, a family succeeded in their appeal against a decision by Mr Justice Hayden, Vice President of the Court of Protection, on grounds of procedural irregularity, because Hayden J had visited the patient at the centre of the case and one possible interpretation of what happened is that he treated what transpired at that visit as evidence in coming to his decision.
The key message of Re. AH for those involved in the Court of Protection is a pressing need for guidance on judicial visits to the person at the centre of the case (e.g. Pressing need’ for guidance on judicial visits in CoP – McFarlane, The black box of the judicial visit to P – the Court of Appeal’s concerns and requirements‘).
Against this background, and over a period of some 10-15 minutes, Moor J visited with MP (without observers present) and reported back to the court.
The judge reported that MP was in “extremely good spirits”, and had been “smiling and waving” at him throughout their conversation. She had spoken to him in English. Moor J was not convinced that MP knew quite who he was, or what his role was, but appeared to have rather enjoyed the exchange. The judge recounted that MP expressed her wishes to have a caesarean section, to be awake throughout it, and her hope that her child – a boy – would one day grow up to be a policeman. Smiles tugged at the mouths of all those visible on screen.
At final submissions, two additional issues arose.
1. Further hearings
First, whether further court hearings should be arranged to pursue other matters in this case. Counsel for the hospital NHS Trust was anxious that MP’s mental health could remain poor or further deteriorate post-partem, necessitating further court best interests decisions. He therefore submitted that arranging a hearing, for some time in the future, would usefully enable the court to deal with any issues arising in the train of this hearing, rather than requiring a fresh application where factual matters would have to be submitted anew.
Moor J was not receptive. Stressing with some force that “we are absolutely overwhelmed with work”, the judge declined to list any further hearings to deal with speculative issues, asserting that “this is a self-contained application”. If there was any further need to come to court, he said, an application could be made at that stage and not before. He was “hopeful that MH’s problems will resolve themselves and this court will have no further jurisdiction”. However, on the suggestion of counsel for the second NHS Trust, Moor J ordered that whilst this was a final hearing, he would ‘grant liberty to come back’ to the court in his final order. This would allow any such issues to be resolved within the structure of the instant hearing, but would avoid listing a hearing unnecessarily.
2. Dealing with delay
Second, counsel for MP via the Official Solicitor raised a concern with “delay in this case”, saying that it ought to have been before the court in November. The judge made clear his view that delays in such cases were not at all unusual.
Court guidance concerning applications for court-sanctioned interventions in childbirth has been in place since Mr Justice Keehan’s judgment in NHS Trust & Ors v FG  EWCOP 30, which has an Annex specifying the procedures to be followed, including that applications should be made “at the earliest opportunity” and “no later than 4 weeks before the expected date of delivery”. Keehan J specifies the reasons for this time frame, saying that “this approach is dictated by P’s Article 5, 6 and 8 rights and best interests”.
Despite this guidance, it’s common for cases to come before the court (as here) where women are within 4 weeks of their expected delivery, and judges regularly express concern that they are having to make decisions about childbirth for women close to (or even after) their due dates. In GSTT & SLAM v R  EWCOP 4, Hayden J was making a decision concerning a woman who was 39 weeks and 6 days into her pregnancy. The judge characterised the delay as “avoidable” and “deprecate[d]” the delay in bringing the case – although in fact it seems it had only become clear 10 days earlier that a problem had arisen because P had stopped taking her anti-psychotic medication.
In the instant case, Moor J commented on the causes of such delay, noting: “It’s the good nature of clinicians. They believe they’ll be able to sort it out and then at the very last minute they realise they can’t”.
In response, counsel for the second NHS Trust (Fiona Paterson) wondered whether it would be appropriate for the President or Vice President of the Court of Protection to write to the Royal College of Obstetricians and Gynaecologists (RCOG) about the pattern. “As counsel we see this more often than we would hope”, she reflected. The judge said he would raise the matter with Mr Justice Hayden, whose office (he said) was within easy walking distance of his own.
In sum, it was clear that there was agreement between counsel that it was in MP’s best interests to receive an elective caesarean, facilitated by a spinal anaesthetic, with administration of general anaesthetic possible if strictly necessary. Moor J was invited to make this order.
The judge summarised the applicable law. Little in that summary would surprise readers of this blog: capacity, which is decision-specific, is assumed unless established otherwise on the balanced of probabilities (see Mental Capacity Act [MCA] 2005, s1(2)). Nobody is to be treated as without capacity unless all practicable steps have been taken to assist them without success (MCA, s1(3)). A person is not to be treated as unable to make a decision merely because he makes an unwise decision (MCA, s1(4)). If lack of capacity is established, the person must be treated in accordance with what is in their best interests (ibid, s1(5)).
Against this background, Moor J was entirely satisfied, based on evidence about MP’s psychiatric state and her inability to understand, retain and weigh the relevant information, that she lacked capacity to make decisions about the birth. He was similarly satisfied that an elective caesarean, performed under a spinal anaesthetic, was in MP’s best interests, in large part due to the size of the baby and the risk of shoulder dystocia. The evidence was cited to support this. An elective caesarean under spinal anaesthetic is also what MP wants for herself, and her partner also (now) supports this. Moor J also ordered that a general anaesthetic may be administered but only if it became ‘strictly necessary’, for example through failure of the spinal anaesthetic, or MP experiencing undue pain or anxiety.
At first sight, this may seem an uneventful hearing. There was no dispute about what was in the person’s best interests, nor was there any divergence between what she herself desired and what was determined to be in her best interests. The hearing ran smoothly and concluded warmly, with Moor J sending MP “the very best for a successful delivery”.
The hearing was an excellent example of how this non-adversarial court works collaboratively and inquisitorially to arrive at the best possible outcome for MP.
I learned several matters from observing this hearing:
- The Court of Protection is presently working under great pressure. Even hearings which, like the instant case, concern seriously invasive medical procedures on the bodies of non-capacitous vulnerable persons, are arriving as urgent and late applications.
- When handling such matters, the court must delicately balance patients’ Article 8 rights to privacy with the public’s Article 10 rights to freedom of expression. Indeed, in the instant case Professor Celia Kitzinger intervened to query whether anonymising the applicant NHS Trusts was appropriate, given the court’s commitment to transparency, and the possibility that disclosure permits recurrently defaulting NHS Trusts to be identified. Professor Kitzinger gave as an example the successful application of journalists (Louise Tickle and Brian Farmer) to name Haringey in reporting Family Court proceedings (as reported by The Transparency Project) – while also acknowledging that this is a very different case. Moor J, observing that the intervention was made “absolutely properly”, agreed that there is “a need for as much transparency as possible”, but upheld anonymisation of the public body in this case in order to absolutely minimise any risk of MP’s ‘jigsaw identification’ (i.e. enabling her identification through publishing a range of different facts about her). It was impressive to observe the courtesy and respect with which this matter was handled, especially in a hearing of such urgency.
- Finally, observing the hearing was valuable for my ongoing legal education. Whilst I have studied medical law for some time, this was the first ‘best interests’ hearing I have ever observed. Observing it, and writing this blog with Professor Kitzinger’s assistance, has enriched my understanding of the decision-making process tremendously. What’s more, as an advocate-in-training myself, it is tremendously valuable to observe advocacy of such high-quality. I was struck by the articulacy and care with which all advocates assisted the court. These insights will no doubt uplift my own advocacy style, for which I (and my advocacy tutors!) can only be thankful as Bar exams creep closer.
I am grateful to all participants in the hearing, and to Professor Kitzinger for her support with this blog post, especially as regards the significance of Moor J’s conversation with MP.
Jordan Briggs is Denise Pannick Scholar at Gray’s Inn currently studying on the Bar Vocational Course at City Law School, London. His previous blogs on legal matters include a brief history of legal aid and a 3-part series on the government’s response to Covid-19 and the rule of law. Jordan tweets @JordanBr1995