By Samantha Halliday, 26 January 2022
I have written extensively about court-authorised obstetric intervention[i] but I’ve always relied upon reported decisions.
I am acutely aware that as Rosie Harding has commented: “When only the judgment is available for academic scrutiny, we cannot be clear as to the ways that the various submissions were framed”. That being the case, I was very keen to observe this hearing (COP 13865837) before Sir Jonathan Cohen on 21 December 2021 in the Court of Protection.
It concerned an application by an NHS Trust (King’s College Hospital NHS Foundation Trust) for a declaration that a young woman (JK) lacks capacity to decide either the mode, or location of her baby’s delivery and that it would be in her best interests for her to deliver in hospital by caesarean.
JK is 21 years old, and at the time of the hearing she was 36 weeks pregnant. At the time of the hearing nobody knew of her whereabouts.
Asked by the judge to outline the issues before the court, Eloise Power (acting for the applicant Trust) characterised JK’s life to date as “tragic in the utmost”, noting that Katie Gollop QC (acting for JK via the Official Solicitor) had described it as “Dickensian”. She agreed, she said that “Dickens could scarcely have devised a worse scenario.”
A vulnerable adult, JK is not suffering from a mental disorder, marking out this case from many of the other cases concerning court authorised obstetric intervention that are regularly determined by the Court of Protection. However, she has a history of Foetal Alcohol Syndrome and her cognitive ability has been assessed as between 5 – 11 years. She lives in supported accommodation, but her attendance at the unit has been erratic and she has been absent for a number of days, with her current whereabouts unknown. She has missed “at least 13” ante-natal appointments and has been aggressive and violent towards healthcare professionals. It was reported that throughout the pregnancy she has abused alcohol and drugs, testing positive for cannabis, crack cocaine and morphine. Foetal growth is restricted leading to a risk of foetal distress in labour.
JK gave birth to twins 2 years ago by an elective caesarean section. The twins were placed with her adoptive mother at birth, but the relationship between JK and her adoptive mother (A) has broken down and A has said that she is not in a position to parent the child JK is expecting. It was noted that the child would be taken into care upon birth.
JK was not present at the hearing, indeed her whereabouts are unknown and she has not been seen since 15th December, almost a week ago. She was represented via her litigation friend, the Official Solicitor (Katie Gollop QC), although neither she nor any agent of the Official Solicitor had not been able to speak to JK directly.
The central question for the court was whether JK had capacity to make her own decision about where and how to deliver her baby.
An adult with capacity has the right to refuse any treatment, no matter how unwise that decision may appear. Treatment without consent will give rise to both tortious and criminal liability. S.1(2) Mental Capacity Act 2005 sets out a rebuttable presumption that a person has capacity, so the starting point is that as an adult JK should be assumed to have capacity to make her own decisions.
Acting for the Trust, Eloise Power reported that JK’s capacity had been assessed on 9th December 2021 by Dr S, the consultant obstetrician, who concluded that JK lacked capacity to make decisions for herself in relation to mode of delivery. During her previous pregnancy, JK had chosen to give birth to her twins by caesarean section and was deemed to have capacity to do so. A significant difference between the two pregnancies relates to JK’s drug use. During her first pregnancy she had tested positive for cannabis, however throughout this pregnancy she had abused alcohol and drugs, testing positive for cannabis, crack cocaine and morphine.
Two witnesses gave evidence on the issue – JK’s support worker and a consultant obstetrician.
The consultant obstetrician’s evidence on capacity
Giving evidence on behalf of the Trust, Dr S (a consultant obstetrician) stated that whilst JK had capacity to make choices about her maternity care during the first pregnancy (when she was cared for by the same Trust), alcohol and drug abuse meant that she was unable to make similar decisions now as she is unable to concentrate for long enough to allow a discussion of the issues.
On 8th December 2021 JK was reported missing and brought to the hospital by the police using the power under s.136 Mental Health Act 1983 to remove a person appearing to be suffering from a mental disorder and in immediate need of care or control to a place of safety. The following day Dr S assessed JK’s capacity observed by the duty psychiatrist (Dr P), in the presence of JK’s named midwife and a safeguarding midwife. Unfortunately, Dr P could not be contacted to give evidence, however a detailed account of the consultation on 9th December was given by Dr S.
Dr S testified that she had assessed JK’s capacity, forming the opinion that JK did not have the capacity to decide upon the mode of delivery because she could not weigh the risks posed by a vaginal delivery after a caesarean, against the risks of a caesarean delivery; however, she concluded that JK retained the capacity to decide to leave hospital.
Capacity is decision-specific, so it is not unusual for a person to have capacity to make one decision, but to lack capacity to make a more complex decision. However, assessments relating to JK’s capacity to decide to leave the hospital are telling in that they clearly indicate a fluctuation in JK’s capacity. Previously the police had brought JK to the hospital on 30th November where she was found to lack the capacity to decide to leave the hospital, only to regain the ability to make that decision one day later. This suggests that JK’s capacity is impacted by the influence of drugs and alcohol, leading Katie Gollop QC, acting for the Official Solicitor to argue that the two-stage capacity test (s.2(1), s.3 (1) MCA 2005) had not been satisfied and that a further capacity assessment is necessary.
JK’s support worker’s evidence as to capacity
Dr S stressed that JK was unable to understand and weigh the risks of a vaginal versus a caesarean delivery. However, evidence given by JK’s support worker (K) emphasised that she is able to take decisions, although K noted that JK is under severe pressure due to the fear that her much wanted baby would be taken away from her and that this is impacting upon her attention span.
K has not been able to discuss delivery options with JK, but felt that her cognitive ability was greater than suggested and that JK would consent to a caesarean and delivery in hospital if the benefits were explained to her. JK’s support worker demonstrably has a good relationship with JK. She explained that she had become aware that JK was pregnant around June 2021 and that she believed ‘we really lost her’ around August 2021 when JK realised that her baby would be taken away from her. She said that JK had named the baby, that she wanted the very best for her baby, but that she did not want to lose her. In her view, this overwhelming fear meant that JK would not engage with healthcare professionals and led to her being verbally abusive and aggressive towards them. She emphasised that the loss of trust had far-reaching consequences for JK’s ability to focus, reducing her ability to discuss what was happening and to plan for the birth.
Katie Gollop QC set out the Official Solicitor’s position that she was “not in a position to say that the statutory presumption set out in s.1(2) of the Mental Capacity Act 2005 is rebutted in respect of litigation or subject matter capacity.” She expressed concern that the Official Solicitor had not been able to speak to JK directly and that support workers at JK’s placement may believe that she has capacity to make her own decision about mode of delivery. Katie Gollop QC argued that an interim order should be made so that if, or when JK is found a further capacity assessment can be performed. This would allow an assessment of her capacity at that time, rather than relying on the now rather dated assessment from almost two weeks ago.
This argument was rejected on behalf of the Trust by Eloise Power who argued that the court should give weight to the professional expertise of the healthcare professionals who were present and conducted the capacity assessment on 9th December 2021, emphasising that the consultant obstetrician is the lead for perinatal health and is experienced in dealing with similar cases.
She juxtaposed Dr S’s testimony with that of JK’s case worker, noting that whilst K has knowledge of JK, she is not trained in mental capacity assessments. Whilst she recognised that it was unfortunate that JK was not able to speak for herself, Eloise Power argued that there was more than enough evidence to rebut the presumption of capacity and indicated that if the court were not satisfied that JK lacks capacity to make this decision, she would invite the court to exercise the inherent jurisdiction to allow a caesarean to be performed in line with clinical advice.
In comparison to the evidence presented relating to JK’s capacity, there was little discussion of her best interests. This is significant because an individual who lacks capacity should be treated in accordance with her best interests. Katie Gollop QC reminded the court that best interests are not limited to best medical interests, instead they include consideration of the individual’s wishes and feelings. However, because she had not been able to speak to JK direct she had “no first-hand knowledge of her wishes and feelings about how she wishes to deliver.” Therefore, the Official Solicitor was able only to state that JK’s “purely medical interests” would support the performance of an elective (in the sense of planned) caesarean. On behalf of the Trust, Eloise Power stressed that JK had chosen to give birth to her twins by caesarean section, lending support to the argument that she would consent to a caesarean if she were in a position to do so.
Sir Jonathan Cohen recognised the great importance and highly personal nature of the decision the court was faced with, saying “the court is being asked to take about as personal a decision as it could be asked to take about the birth of JK’s child and I’m acutely conscious that it is her body that the court is being asked to make orders about.”
Having described JK’s life as “one of extreme disorder,” saying “she suffered from about as a disruptive and abusive childhood and adolescent as can be imagined” he proceeded to summarise the evidence presented to the court. The judge detailed JK’s frequent absence from the unit over the last month, her failure to attend ante natal appointments and the hostility she displayed towards the midwives who came to the unit on 15thDecember, when she is described as “verbally aggressive towards the midwives, shouting, swearing and screaming. She looked unkempt. The midwives were unable to complete an antenatal healthcheck.”
Sir Jonathan Cohen noted that the Director (K) of the supported living accommodation where JK lives has provided considerable support to JK, but that K had told the court that once midwives started visiting the unit JK lost trust in the staff. He noted that K did not know what JK would want, but that she had told the court that JK was very scared of losing her child again.
He emphasised the experience of the professionals who conducted the capacity assessment on 9th December and stressed that JK had not been intoxicated or scared at the time, concluding that the assessment was conducted in relatively favourable condition to JK.
Sir Jonathan Cohen described K as “doing her best to assist the court, albeit that she herself does not have medical training, or mental capacity assessment training”, juxtaposing her lack of specialist knowledge with that of the health care professionals who conducted the capacity assessment on 9th December. Nevertheless, he noted that K had said “if things were explained properly to JK she would be able to understand them. She doesn’t understand 100% about risk and she sometimes says now I understand, but she can’t hold on to too much information. She had never spoken to JK about the delivery process. … Her ability to understand has got much worse, she said she couldn’t even have a 5-minute conversation with JK, couldn’t even ask her what she would want for breakfast. Her mood has got much worse she said, she has lost trust in people. Then to me she said … she’s under great pressure at the moment. …obviously it weighs on her the thought of the loss of her baby. The pressure simply does not let her concentrate on herself or on her baby. She would not listen to anyone on 15th December, the last time she was seen, her ability to sit down and listen to explanation has gone.”
The judge emphasised the familiarity of Dr S, the consultant obstetrician with these type of cases and that she has special responsibility for perinatal mental health. He addressed the fact that JK had been found to have capacity to determine mode of delivery two years ago in her previous pregnancy, but that the capacity assessment on 9th December 2021 found that she lacked capacity to determine the same. “She did not appear to be suffering from the effect of drugs at that time and was not intoxicated, or scared. The problem was more that she simply lacked the attention span, she couldn’t discuss the risks and benefits for long enough before becoming verbally aggressive and shouting. …. She is in a very different place….”
The change was he said attributable to her chronic use of cocaine. “She is a chronic user of drugs and alcohol and that combined with the potential loss of her child simply stops her making any decisions as to her healthcare.”
Turning to the arguments made by Katie Gollop QC on behalf of JK via the Official Solicitor, he accepted that this problem should have been foreseen. However, he rejected her position that when/if JK were found a further capacity assessment should be undertaken and that if she were found to have the necessary capacity to determine how to give birth her wishes should be respected.
In considering the Official Solicitor’s position that there is insufficient evidence that JK now lacks capacity (2 weeks after the assessment), and that it may still be possible to support JK so that she can make her own decision, the judge accepted the Trust’s argument that there is insufficient time for this: the caesarean is scheduled to take place in two days’ time and in any event, nobody knows where JK is.
Sir Jonathan Cohen dismissed the possibility that JK might now have capacity for the following reasons “I particularly refer to the long term diagnosis … about her cognitive ability and the other aspects of her psychiatric make up [FAS, epilepsy and depression]; I look at her history since January 2019 and the history of erratic behaviour no doubt in large part also due to substance abuse; I look at the assessment of 9th Dec 2021 carried out in what are rightly described as relatively favourable conditions to JK in circumstances when she was neither intoxicated, or scared. I refer to the attention span deficit which there is no reason to think that there is any likelihood of improvement. I refer to the evidence read of the visit on the 15th December 2021 by the midwives on the last occasion that she has been seen. All those factors lead to the clear conclusion that the prospect of capacity being regained is illusionary and becoming ever more so, I say becoming ever more so because the pressure on JK is only going to increase as the date for delivery gets ever nearer. And I am clear therefore that she lacks capacity.
I regard the prospect of her engaging voluntarily in any capacity assessment as so remote as to be one that the courts simply cannot put into the balance at all. I therefore conclude that when I look at s.3 MCA that JK is unable to make a decision for herself because s.3(1)(b) she is unable to retain the information relevant to the decision and unable to weigh the information as part of the process of making the decision.”
Having concluded that JK lacks capacity, Sir Jonathan Cohen went on to consider JK’s best interests. Where an individual lacks capacity, she must be treated in accordance with her best interests. The judge said “There is no dispute that if I were to make a finding of incapacity, the OS accepts that a caesarean section under general anaesthetic would be the appropriate course to take.” Summarising his assessment that it would be in JK’s best interests for a caesarean to be carried out he said: “JK has a scar on her uterus from her previous caesarean section, there are risks that the scar might rupture from a spontaneous and induced vaginal birth; the baby that she is carrying is a vulnerable child, growth restricted and on the 3rd centile; JK is unlikely to cooperate in a long induction or vaginal birth and she is at the risk of absconding during a vaginal birth; there are risks that analgesia will not be effective on her due to drug abuse; and she is at more risk of perineal trauma due to non-compliance. If she were to abscond the risk of infection would grow. And says the obstetrician, the baby is at risk of distress in labour due to growth restriction and there is a high chance in any event that she would need an emergency caesarean. All of us who do these cases that an emergency caesarean section is the most dangerous thing of all for a mother and her unborn child. And therefore I come to the clear conclusion that it is in her best interests for a caesarean section to take place.”
In determining JK’s best interests the court is required to consider her “past and present wishes and feelings” (s.4(6) Mental Capacity Act 2005) and Sir Jonathan Cohen emphasised that JK had previously chosen to deliver via caesarean section, noting that in her current medical conditions the advantages of such a delivery are much greater than they were at the time of the twins’ birth. He concluded that it “Appears likely, if able to express informed wishes and feelings, that she would consent to the operation.”
Therefore, Sir Jonathan Cohen granted the declarations sought, authorising restraint if necessary for conveying JK to the hospital and during the birth.
As Hale LJ recognised in Montgomery v Lanarkshire Health Board  UKSC 11, the way in which one gives birth is an intensely personal decision: indeed Sir Jonathan Cohen echoed this at the start of his judgment.
However, if the woman is judged to lack the necessary capacity to make this decision, it will be transferred to a third party who has only to consider (but not give effect to) the woman’s wishes and feelings. As Lady Hale said in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67 “The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”
In 2017 the Law Commission recommended that the best interests checklist set out in s.4 Mental Capacity Act 2005 should be amended to ensure that “particular weight is given to the person’s ascertained wishes and feelings when a best interests determination is being made “ (Mental Capacity and Deprivation of Liberty, 2017) .
In this case, JK lacked a voice. Whilst the Official Solicitor represents those lacking capacity, her role is to represent JK’s best interests, not her. Indeed, the Official Solicitor had no personal knowledge of JK and so no direct knowledge of what she would have wanted. K, her support worker provided a detailed account of K and said that JK would be very able to speak to the judge, that she knows her own mind and is able to take decisions if supported, but at the time of the hearing JK was missing. She had not been seen by the Official Solicitor and took no part in the proceedings. The role of the Official Solicitor is to represent P’s best interests, not to act as her advocate representing her views. Nobody spoke on behalf of JK’s values, wishes, feeling and beliefs – she, her situation, was discussed by others. Her own voice was noticeably absent.
The fact that she had previously decided to be delivered by caesarean does not mean that she would want to deliver in the same way again: indeed, that was the very situation that Mrs Chowdry found herself in in Rochdale Healthcare NHS Trust v C  1 FCR 274 where she proclaimed that she would rather die than have another caesarean. Moreover, it seems to me significant that during her first pregnancy JK trusted the healthcare professionals caring for her. This pregnancy was very different: at the time of the hearing she had missed multiple ante-natal appointments and it was reported that she did not trust the healthcare professionals caring for her as she thought they would take her baby away.
In any event, it is impossible to know what JK would have wanted. Her support worker believed that she would consent, if the risks were explained to her; it was suggested that during the capacity assessment she had at least acquiesced in agreeing to have a caesarean, but the fact that her wishes were a matter of conjecture is deeply regrettable.
As a side note, it is worth remembering that the best interests’ assessment should focus upon the individual concerned – that is JK, not her foetus – and to that end the risk to the foetus due to its restricted growth is not relevant to the assessment. However, in this, as in other cases of court authorised obstetric intervention, the woman’s best interests were linked to the desire to deliver the baby as safely as possible, the judge suggesting that it is likely that if JK had been able to express informed wishes and feelings she would have consented to a caesarean.
The underlying philosophy of the Mental Capacity Act 2005 is that individuals should be empowered to take decisions for themselves wherever possible, and therefore s. 1(3) Mental Capacity Act 2005 requires that all practical steps be taken to enable the individual to take the decision for herself without success before she is deemed to lack the capacity to decide for herself.
As a vulnerable woman, it was foreseeable that JK would need to be supported, to be assisted to make a decision. Such support can be provided, but it takes time, time that is not available two days before the procedure is scheduled to be performed.
This type of case needs to be identified much earlier in the pregnancy, with appropriate support provided to enable the woman to make her own decision, rather than falling back on what might be considered the normative position, that she would consent to major surgery to ensure the safe delivery of her baby if she were able to do so.
Given the Official Solicitor’s position that the presumption of capacity had not been rebutted, I was disappointed that the court was unwilling to accept the argument that an anticipatory and contingent order be made, requiring JK’s capacity to be re-assessed before the caesarean is performed. Sir Jonathan Cohen stressed the specialist expertise of Dr S and that the capacity assessment on 9th Dec 2021 was carried out in “what are rightly described as relatively favourable conditions to JK in circumstances when she was neither intoxicated, or scared.” However, it must be remembered that JK had been delivered to the hospital the previous day by the police for the second time in less than a fortnight. It is likely that she was very anxious, certainly she was vulnerable and angry, it is difficult to imagine that the situation was conducive to a calm discussion of the relative risks of a vaginal delivery.
In NHS Acute Trust, NHS Mental Health Trust v C  EWCOP 17 it was agreed that the patient’s capacity to make decisions and the methods authorised by the court should be actively reviewed: however in this case the court accepted that the presumption of capacity had been rebutted, that JK lacked capacity.
In United Lincolnshire Hospitals NHS Trust v CD  EWCOP24 Francis J made an anticipatory, contingent declaration on the basis that a patient with capacity might become incapacitious.
In the case I have focused on in this blog a similar order could have been made, providing for JK’s capacity to be assessed so that if she were found to have capacity her own decision about mode of delivery would apply.
Like so many of its predecessors, this case was framed as urgent. But JK was not due to give birth imminently – she was 36 weeks pregnant and so birth would normally have been expected in around four weeks. What was imminent was the caesarean that had been scheduled for her in two days’ time. Evidence was not provided at the hearing that the caesarean was immediately necessary, although the clinical evidence was that it would be dangerous for JK to give birth outside a medical setting, both for herself and the foetus, and that an emergency caesarean would be the most dangerous option of all. Nevertheless, that an order might be necessary in this case was foreseeable, that JK would need support was foreseeable; the risk of JK disengaging from antenatal care and deciding to deliver in secret, without medical support was all too apparent as long ago as August. This case should not have been allowed to become the subject of an urgent hearing.
Indeed, Katie Gollop QC reported that the Official Solicitor is in something approaching a state of despair about pregnancies such as JK’s. She pointed out that “It is a tragedy that those who most deserve the most skilful, time intensive, patient, relationship-building, multi-disciplinary attention that the NHS can provide find themselves deprived of that consideration because of medical delay.”
As Lieven J noted in University Hospitals Dorset NHS FT v Miss K  EWCOP 40 “It is wholly unacceptable that NHS Trusts routinely put the Official Solicitor in such an impossible situation where she cannot do the job she is instructed to do, and where her role effectively becomes a tick box exercise. This is a waste of resources and wholly unhelpful to P’s best interests. It is also unfair on the court.”
At the request of the Official Solicitor, the judge agreed to include a recital to the order recording that the Trust has provided an assurance that the director of governance will be issuing a revised policy and some Mental Capacity Act training to staff in the hope that this might send out a message to other Trusts that there is a need to identify such cases as early as possible and to avoid the recurring situation whereby action is taken too late to facilitate support for the individual and proper representation of their interests.
This is not a novel suggestion, guidance was issued by Keehan J in NHS Trust & Ors v FG  EWCOP 30emphasising that “Urgent applications … must be limited to those rare and few cases where a genuine medical emergency has arisen and an immediate court order is necessary. I do not consider a failure to plan appropriately and/or a failure to identify a case where an application to the court may be required constitutes a genuine medical emergency.” It would appear that this message has not yet got through…
As a legal academic it was fascinating to observe the proceedings and to see how such cases are determined, to observer the way in which evidence is presented, how the barristers framed their positions, and how the judge determined the case. These cases are terribly sad and undeniably hard, but I saw nothing but compassion for JK from all involved and join them in hoping that things went as well as possible for JK and that she is receiving the support she undoubtedly needs.
Dr Samantha Halliday is Associate Professor in Biolaw at the Centre for Ethics and Law in the Life Sciences at Durham Law School. She tweets @DrSamHalliday
[I] See for example S. Halliday Constructing the Foetus as a Patient: A Comparative Analysis of Compelled Obstetric Intervention; S. Halliday Autonomy and Pregnancy: A comparative analysis of compelled obstetric intervention, 2016, Routledge; S. Halliday, “Court-authorised obstetric intervention: Insight and capacity, a tale of loss” in Childbirth, Vulnerability and Law: Exploring Issues of Violence and Control, 2019, Routledge).