By Celia Kitzinger, 10th March 2022
The woman at the centre of this case, AX, is in her late twenties. She’s 40 weeks pregnant and may go into labour at any time.
She had an emergency caesarean section with her first child, three years ago. That child now lives with AX’s mother (the child’s grandmother) under a Special Guardianship Order. The relationship between AX and her mother is strained as a result.
After her last experience of a caesarean, AX is adamant that she doesn’t want a caesarean section this time.
But today the court declared her to lack capacity to make her own decision about mode of birth (she has schizoaffective disorder) and approved an order declaring it lawful for the medical team to anaesthetise AX (including a general anaesthetic if necessary) and to deliver her baby by caesarean section.
This is one of a whole series of court-authorised caesarean section hearings I’ve watched over the past 18 months, most of them held as “emergency” hearings. (see Capacity and elective caesarean, Elective caesarean in her best interests, An urgent court-authorised caesarean, C-section and anaesthesia).
Counsel for the Chelsea and Westminster Hospital NHS Foundation Trust was Parishil Patel QC. I’m grateful to him for sharing a case summary and draft order with me.
Counsel for AX was Katie Gollop QC, via the Official Solicitor. She’d been only very recently appointed to represent AX (“parachuted in” was how the judge put it), and she hadn’t had an opportunity to prepare a position statement.
The judge was the Honourable Mr Justice Francis.
Various medical staff had provided witness statements, including AX’s consultant obstetrician, consultant anaesthetist, consultant in liaison psychiatry, and consultant perinatal psychiatrist. Some of these witnesses were in court ready to give oral evidence, but counsel did not consider this necessary.
AX’s stepmother (who is also her chosen birth partner) was also in court, and addressed the judge, providing some background information as to her view of AX’s wishes, and why AX might hold the views she does.
I think the hearing had started before I joined at 4.15pm (10th March 2022), when the court reconvened following a break to allow Katie Gollop to catch up with the paperwork. I don’t know what happened before I joined, but I assume that counsel for the applicant Trust had set out the case for approving the draft order. The part of the hearing that I watched lasted for about 45 minutes (including the judgment).
As so often in these caesarean cases, I wasn’t sure why this came before the court as an emergency.
Her stepmother (and intended birth partner) said that AX had experienced mental health problems for at least 8 years. She is diagnosed with schizoaffective disorder. She’s had nine previous hospital admissions, and on this occasion she’s been in hospital since 24th February 2022 under s.2 of the Mental Health Act 1983 because of a deterioration in her mental health. That’s two weeks during which the hospital could surely have figured out that an application to the court would be necessary.
It also seems she’s been at least “sporadically compliant” (I’m quoting counsel for the Trust) with antenatal care during her pregnancy. So at various points during the past few months, professionals have met with her, and she has “allow[ed] foetal monitoring”. These interactions must surely also have offered the opportunity to plan ahead for the birth?
AX has “fixed beliefs” that “the health of the foetus is not compromised and that there are no risks in having a spontaneous vaginal delivery”. These “fixed beliefs” run counter to those of the medical staff treating her – and must have done so for some time before this application was made when she is in the last week of her pregnancy.
As with some of the end-of-life decisions that come before the Court of Protection, I am puzzled and dismayed that opportunities to plan ahead seem to have been missed.
Was it not possible to make an earlier application to the Court? It was surely forseeable that an application might be required.
“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.” (Keehan J in NHS Trust & Ors v FG  EWCOP 30)
And if (as seems possible) there had been times during the past 40 weeks when AX had capacity to make her own decisions about mode of delivery and wished capacitously to refuse a caesarean under all or some conditions should she lack capacity to do so in future, she could have been advised to make a written statement (of the kind given legal weight in s.4(6)(a) of the Mental Capacity Act [MCA]) or even a legally valid Advance Decision to Refuse Treatment (ss. 24-26 MCA) so that her wishes could not be over-ridden.
Alternatively, might there have been a time during the past few months when she was well enough to recognise that, even though she didn’t want a caesarean, it would be better to have one rather than risk her baby’s life – and she could have given ‘advance consent to treatment’ she knew she might later refuse when she became ill. ‘Advance consent’ isn’t legally binding in the way that advance refusals are (for more information see: Psychiatric Survivors’ Views on Advance Consent and ‘Forced’ Treatment) but they are enormously important as written expressions of a person’s wishes, which must be considered when making best interests decisions about them.
Even without the capacity at any point during the last few months to make her own decisions about mode of delivery, it is likely that she could have contributed to a future best interests decision by documenting (with support from her psychiatric and obstetric teams) her wishes and feelings about caesarean vs vaginal birth. Did anyone discuss with her what was so upsetting or frightening about the previous caesarian, and how a future caesarean might be managed so as to make it less upsetting? Did anyone raise the possibility that she might formally appoint someone she trusts (maybe her stepmother) to make decisions for her if she could not (ss. 9-14 MCA).
Maybe there was some preparation and forward planning that I’m not aware of, but it certainly wasn’t evident from watching the hearing.
The medical need for a caesarean
I didn’t learn from the hearing, or from the documents I was sent, why a caesarean was considered medically necessary. I assume the details were laid out in the witness statement by the obstetrician.
Assertions were made in court that a vaginal delivery posed “risks to her and her foetus”, that there was a “high risk of still birth” and that if she were to go into labour spontaneously and attempt a vaginal delivery, there would be “a high likelihood of a caesarean being required to deliver the child safely”.
It’s likely that the previous caesarean is a factor in this, and – perhaps most saliently – the fact that she has developed gestational diabetes and “her compliance with medication to manage the risks from diabetes has been sporadic” (Trust).
According to the NHS website, “most women with gestational diabetes have otherwise normal pregnancies with healthy babies”, but the site also lays out a whole raft of possible problems:
- “your baby growing larger than usual – this may lead to difficulties during the delivery and increases the likelihood of needing induced labour or a caesarean section
- polyhydramnios – too much amniotic fluid (the fluid that surrounds the baby) in the womb, which can cause premature labour or problems at delivery
- premature birth – giving birth before the 37th week of pregnancy
- pre-eclampsia – a condition that causes high blood pressure during pregnancy and can lead to pregnancy complications if not treated
- your baby developing low blood sugar or yellowing of the skin and eyes (jaundice) after he or she is born, which may require treatment in hospital
- the loss of your baby (stillbirth) – though this is rare.”
The same website also states:
“If you have gestational diabetes, it’s best to give birth before 41 weeks. Induction of labour or a caesarean section may be recommended if labour does not start naturally by this time. Earlier delivery may be recommended if there are concerns about your or your baby’s health or if your blood sugar levels have not been well controlled.”
AX’s stepmother said that when she’d spoken to AX the previous day, she’d said she was “controlling her diabetes herself with healthy eating” and she was “adamant there’s nothing wrong with her baby”.
According to the Trust, “she has fixed beliefs about her care and treatment, namely that the health of the foetus is not compromised, and that there are no risks in having a spontaneous vaginal delivery”.
Of course, a woman with mental capacity to make her own decision about mode of delivery could decide to refuse a caesarean (and opt for a vaginal delivery) whatever was said by obstetricians about the risks to herself and her foetus.
But AX has been deemed to lack the mental capacity to make that decision.
The evidence on capacity came from two psychiatrists who had assessed AX as having schizoaffective disorder and being currently unwell. She can understand, retain and communicate information relevant to the decision about mode of birth, but she is (they say) unable to weigh it properly. She has “poor ability to evaluate the options”, “limited mental flexibility, foresight and judgment”.
The judge concluded that “I’m in no doubt that I can and must conclude that P lacks capacity. The jurisdiction of this court is therefore established”.
There seemed to be no doubt in anyone’s minds but that a caesarean was in P’s best medical interests.
But what of her wishes and feelings (s.(6)(a) MCA)? What are the beliefs and values that would likely influence her decision if she had capacity (s.(6)(b) MCA)? What factors would she be likely to consider if she were able to do so (s.(6)(c) MCA)?
The court learnt a bit about P from her stepmother – although it was clear that the stepmother supported the application from the Trust to order a caesarean against AX’s stated wishes.
She said AX “feels she’s being controlled” by people who try to provide her with guidance. That might be true! A midwife had talked to her about caesarean the day before. Counsel for the Trust said that “the hospital thought that [the midwife] could improve her compliance and their meeting yesterday went well. But today she completely reverted back to refusing a caesarean, so the avenue that was to improve her compliance hasn’t worked”.
Her stepmother also said that AX’s “biggest fear” is that her baby “is going to end up in the care system – the longer she stays pregnant, the longer she has the baby. She’s asked me when she has it, is the system going to take the baby away? If we could give her an insight into what the plan is for after, maybe she’d willingly have the caesarean with some kind of hope that she may be able to keep her child.”
The judge pointed out that he knew nothing about the care proceedings, either for AX’s previous child or for this one, and that it would be wrong to offer “false hope”. I think it was stated that there is already a child protection plan in place for the unborn child.
Overall, I got very little sense of AX as a person. I don’t know why she wasn’t in court. Perhaps she’d been offered the opportunity and declined, as many Ps do. I don’t believe the judge had met her: he certainly didn’t mention having done so. I don’t think AX’s litigation friend had met her either, since she’d so recently been instructed.
The absence of AX’s ‘voice’ in the proceedings was one consequence of the lack of advance planning and the ‘emergency’ nature of the hearing.
Of course AX was, technically, represented by her litigation friend, Katie Gollop via the Official Solicitor. But Katie Gollop argued that a planned (“elective”) caesarean was in AX’s best interests.
So this was one of those cases where the lawyer representing P makes an argument that runs directly counter to P’s stated wishes.
This happens reasonably frequently because the Official Solicitor is charged with making submissions in P’s best interests – which is not always the same as what the person says they want (see Alex Ruck Keene’s blog post, “Litigation friend or foe”).
“It’s never comfortable to have to say that it’s in P’s best interests to have a serious surgical intervention against their wishes”, said Katie Gollop.
She did so because, she said, the obstetrician’s evidence in paragraphs 12 and 13 of her statement (to which I don’t have access) is that there is “a high likelihood that a caesarean section would be required in any event, even if she were to commence labour, and ‘have a go’ as it were. And in the next paragraph, about the anaesthetic risk – which is particularly high if you crash into an unplanned emergency caesarean section. I completely understand she’s had the experience of a caesarean section and didn’t like it and doesn’t want it again. But it’s important to her to have a healthy and live birth, and have an opportunity to be a mother to her child. So I would advocate for a precautionary approach – given the risk of ending up with a c-section anyway”.
The risk of an attempted vaginal delivery resulting in a dead baby was raised several times – and as Katie Gollop said, whether or not she actually has the opportunity to live with this child (depending on care proceedings), “a live birth will give AX options that don’t exist with a stillbirth, of which there is a high risk”.
Having established to his satisfaction that AX lacks capacity to make her own decisions (and hence that the jurisdiction of the court is engaged), the judge was clear that the “risk of stillbirth” played an important part in his best interests decision-making.
For the judge, the risk is “if I do not intervene soon, it’s extremely likely that the foetus would be lost”. He considered the “prospect of a vaginal delivery going wrong, with AX refusing to accept a caesarian, leading to the sort of disaster identified by [the consultant obstetrician] in her report. I remind myself that I must apply the best interests test to AX and not to the foetus, but the consequences to AX of a chaotic birth, resulting in the loss of life to her baby, would be simply devastating. I know nothing about the care proceedings. I don’t know whether she’ll be able to provide a home for her baby. I make no comment on that. But I do consider the psychiatric and emotional consequences to any mother – any parent – even without AX’s psychiatric condition – in that situation.”
He approved the order the relevant part of which (in the draft form I was sent) reads as follows:
IT IS HEREBY DECLARED THAT:
1. AX lacks capacity:
a. to make decisions regarding her antenatal care and treatment and/or in connection with the management of her labour and birth, including whether to undergo a caesarian section;
b. to conduct these proceedings.
2. Having regard to the best interests of AX, it is lawful for the medical and nursing practitioners who have responsibility for her care and treatment to do the following in accordance with the Care Plan appended hereto:
a. To provide such care and treatment to AX, including nursing care, as may in their opinion be necessary and proportionate for the purposes of delivering safely her baby, including but not limited to:
i. monitoring AX’s condition;
ii. monitoring the condition of the foetus inside AX’s uterus;
iii. the insertion of needles for the purpose of intravenous infusions, sedation and/or anaesthesia;
iv. the administration of sedation, general anaesthesia or regional anaesthesia;
v. a caesarian section to deliver the baby;
vi. such peri-, post natal care and treatment as is required to ensure that AX suffers the least distress and harm and
which allows her baby to be delivered safely.
b. Administration of such medical treatment and nursing care as may be appropriate to ensure that AX suffers the least harm and distress and retains the greatest dignity.Draft Order
The hearing ended with the judge thanking everyone – especially AX’s stepmother and the medical professionals – for attending the hearing at short notice. And he asked “from personal concern not professional duty” if someone would inform him of the outcome of the case.
Court-authorised caesarean sections are a draconian use of judicial power to compel a woman to submit to surgery she doesn’t want. I find them disturbing to watch. I experience a visceral sense of outrage at the idea that anyone might subject me to medical treatment against my will.
As a feminist, my values are strongly: My body, My choice.
Judges are always meticulous in avoiding any suggestion that their decisions are influenced by a notion of “foetal rights” or that they are protecting the life of an unborn child against the unwise decisions of its mother. Instead, the birth of a live baby (as against the risk of stillbirth) is explicitly evaluated in terms of its likely effect on the woman, who is presumed or known to want a live baby.
And it can be quite frustrating to observe court hearings – especially ‘emergency’ ones like this – without enough of a background understanding of the case (there was no summary of the case in today’s hearing), and without sight of the witness statements or the expert evidence that the lawyers and judge are relying on.
I hope there was good evidence that a caesarean was medically required. I am acutely aware of other cases (e.g. Guys and St Thomas  EWCOP 35) where doctors have made pessimistic assessments of women’s ability to safely deliver a child via vaginal birth, and judges have approved caesareans – but in the event women have given birth without the need for surgical interventions.
I hope there was good evidence that the psychological and emotional harm caused to AX by a planned caesarean against her wishes would be outweighed by the psychological harm caused by violation of her autonomy and bodily integrity.
I hope the court is not displaying a ‘protection imperative’ in making this decision about AX.
More than anything, I hope for better advance planning for pregnant women with mental health challenges in the future, so that they can exercise their right to bodily autonomy (even if that means making decisions that others see as unwise or morally repugnant) and can have their wishes and feelings fully acknowledged and respected in best interests decisions made about them.
Celia Kitzinger is co-director, with Gill Loomes-Quinn, of the Open Justice Court of Protection Project. She tweets @KitzingerCelia. She thanks Brian Farmer for alerting her to this emergency hearing.