By Ruby Reed-Berendt, 3rd March 2023
The woman at the centre of this case (SEM) was 32 years old and pregnant with her first child. The Trusts responsible for her obstetric and psychiatric care had made an application that it would be lawful to carry out a caesarean section, notwithstanding that – in the view of all the clinicians responsible for her care – she lacks the capacity to consent to it. The case (COP 14053355) was heard over two days ( 22 and 23 February 2023) before Mr Justice Moor.
According to the Trusts, SEM “began to exhibit psychotic symptoms” in July 2022. These were said to include delusional beliefs, a suspicion of her treating clinicians, and paranoia. She had refused to receive an Anti-D injection, required because she was rhesus negative, on the basis that she believed the baby would then no longer genetically be hers. A warrant was obtained to gain access to her home and she was admitted to hospital for assessment under section 2 of the Mental Health Act 1983 (MHA). This was later transferred into a section 3 detention.
At the time of the hearing, SEM remained detained in hospital under the MHA. She had applied to the Mental Health Tribunal to challenge her detention, but on 15 February 2023 the tribunal concluded that the criteria for ongoing detention under section 3 MHA were still met.
Ms Nicola Kohn of 39 Essex Street Chambers acted as counsel for the two Trusts. SEM had instructed her own solicitor (who accepted she had litigation capacity) and Mr Martin Westgate KC of Doughty Street Chambers acted as her counsel. From what I could see of the virtual and physical rooms, she was present neither in the court room nor on the video platform.
Everyone in Court agreed that a caesarean section was the safest mode of delivery for SEM and her baby. SEM had put on a large amount of weight during pregnancy, leading to concern that she had developed gestational diabetes, increasing the risk of complications for her and the baby should she have a vaginal birth. The matter had been discussed with SEM on various occasions but there the Trust did not consider that she had consented to this procedure or that she had the capacity to do so. So, the Trusts commenced proceedings in the Court of Protection, seeking a declaration that SEM lacked capacity to make decisions about her obstetric care, specifically the birth of this child, lacked litigation capacity, and that a caesarean section at 39 weeks with spinal epidural was in her best interests.
Like many of the caesarean section cases which come to the Court of Protection, this was an emergency application, made by the Trust on 16th February 2023, four days before the planned procedure (which had to be postponed when the case could not be heard in time). By the time the case was heard on 22nd and 23rd February, SEM’s due date was less than a week away and it was clear that the parties were increasingly anxious of the possibility of her going into labour spontaneously.
I became aware of this case on Monday 21st February 2023 via the Open Justice Court of Protection twitter feed. I requested to observe on that day, but was informed that the case was no longer being heard then and would be relisted the following day. On the Tuesday, I received a link to join the hearing, however the sound on the video link was broken and I was unable to hear anything (you can read Celia Kitzinger’s blog about that hearing here). I re-joined the hearing on 23rd February and was able to listen to each counsel giving closing arguments and Moor J handing down judgment.
During the course of 23rd February, it became clear to me that evidence had been heard the previous day from two doctors: Dr A, SEM’s treating consultant in the mental health unit, and Dr B, a consultant psychiatrist instructed by SEM’s solicitor. Both doctors had also given evidence at the Tribunal hearing, with Dr A’s evidence preferred on that occasion. As I understand that Moor J’s judgment will be published at some point (and a link will be added when it is), in this blog I focus on the closing arguments put before the court.
At the outset of the second day, Moor J made clear that everyone wants the same outcome here, “a happy delivery of a healthy baby and mother”.[i] Nobody was suggesting that the caesarean section should not go ahead, and in the course of the hearing Ms Kohn advised that the Trust had made arrangements to allow the procedure to take place that afternoon (as it ultimately did). However two key issues were contested: first, whether SEM had capacity to consent and (if so) whether she had actually consented, and second, whether she had litigation capacity.
- Did SEM have capacity to make medical decisions and was she consenting to the procedure?
From what I gathered (having not been in court to hear the doctors give evidence), it seemed that there had been various conversations between SEM and her care providers over the proceeding months about the birth of her child. The necessity for a caesarean had been explained to SEM, as well as the relevant risks. During this period, she had become focused on and concerned about the (small) risk of that she could need a hysterectomy, expressing that she would not consent to it. Some discussion also took place regarding blood products. SEM expressed to Dr B on 19thFebruary that she would consent to the caesarean, but had said to Dr A later that day that she was on the verge of signing the consent papers. And so, we come to the arguments advanced.
Mr Westgate for SEM
On behalf of SEM, Mr Westgate submitted that she had capacity to consent to the caesarean section, and that she was consenting. He argued that SEM had understood the relevant information, and although she had concerns about them, she did accept that the administration of blood products, and possibly a hysterectomy, might be necessary. Mr Westgate emphasised that SEM’s behaviour in the run-up to the case “is what we would expect of someone who hears, retains, uses information,” and that when she is given space to make a decision, listened to, and respected, she is able to make a decision for herself. He suggested that the evidence of lack of capacity given by Dr A were “assertions” and “generalisations” which Dr A was unable to substantiate in detail.
He first dealt with the Dr A’s evidence regarding SEM’s mistrust or paranoia of doctors. He suggested that her interactions had been variable and there appeared to be a spectrum of experience dependent on the practitioner she was interacting with: “who SEM is speaking to may be a factor when taking into account whether she can communicate effectively”. He noted that Dr B had a different experience of interactions with SEM, in that she reported “no lack of engagement or delusional thinking”. He noted that SEM had reached a decision with the advice of doctors and that the history of the case is “full of her accepting advice from Dr C [another doctor in her treating team] despite it going against what she wants”. He suggested this demonstrated SEM’s ability to discuss difficult topics and to agree to move on certain points. He added that any non-engagement with doctors does not fit within the “rubric of decision-making” and whilst a lack of cooperation from SEM might be unhelpful, it does not necessarily affect her ability to make decisions.
In terms of the hysterectomy, Mr Westgate emphasised that SEM had not refused the hysterectomy or the c-section, indicating that the focus of the Trust’s evidence was on her reaction to the news that a hysterectomy was a potential complication. He suggested it was “unsurprising that she reacted the way she did” to what was a “shocking piece of information”. He continued that her response “shows exactly the thought processes that you would expect from a capacitous individual”. He submitted that Dr A’s claim she didn’t fully understand what is wrong with her was not relevant to this decision, since “the fact she lacks insight on something else doesn’t have a bearing”. He added that her desire to avoid a hysterectomy shouldn’t be construed as her lacking capacity as this “falls into the error of equating the quality of the decision with capacity”. He pointed to the fact that a warning about a hysterectomy is a routine part of the process of informed consent for caesarean section, suggesting that this indicates a recognition that it “might lead someone to say no”. He concluded on this point: “nothing off about not wanting to lose an organ…especially where SEM is a young woman who has not completed her family and has previously lost a baby”.
Mr Westgate then spoke of the Trust’s submission that SEM’s decision is changeable, and their reliance on the different discussions SEM had with Dr A and Dr B on the 19th February. On this point he stated: “difficult decisions are hard, you don’t lack capacity because you find them hard. Decision-making is a process and not a single event. Doubts don’t go even when you have made a decision, and you might refer to those doubts in later discussion. If SEM changes her mind that doesn’t mean she lacks capacity now”.
Mr Westgate accepted that if SEM were considered to have capacity, this would mean that she could potentially refuse treatment while she was in the process of labour. He stated “That’s the consequence one looks at with brave concern. It can’t displace the finding of capacity in and of itself. It’s her choice. Although others may say it’s wrong and tragic and possibly irresponsible, it’s for her to decide.” This led him to deal with what he termed the ‘contingent’ option, where Moor J could potentially find that SEM had capacity now, but make a declaration that should she lose it during labour, then the professionals could proceed in her best interests. This so-called option was based on the case of Guys And St Thomas NHS Foundation Trust (GSTT) & Anor v R where a woman with a diagnosis of Bipolar Affective Disorder was objecting to a caesarean section, and all parties agreed she had capacity to do so, but there was said to be a significant risk she would lose capacity during labour. An ‘anticipatory declaration’ was made that should she lose capacity during labour, a c-section could be undertaken as in her best interests. On this case, Mr Westgate noted the thorough review undertaken by Hayden J of the relevant cases (to which Moor J commented “thirty-nine authorities!”) and urged the judge to reject the making of a similar declaration. He suggested the power should be used sparingly, and pointed to the key factual differences, in that SEM was currently consenting but may withdraw her consent. He suggested a contingent declaration should not be used “as a backdoor way to say she lacks capacity” and that her capacitous decision should be respected.
Ms Kohn for the Trusts
Ms Kohn began her submissions acknowledging that, if she is capacitous, SEM can choose whatever medical interventions she wishes. She went on to state: “It is not an academic point whether or not she agreed. Clinicians have to be certain what she is agreeing to and whether she does agree. On the evidence we have, there is no evidence of an agreement in fact or in law.”
“Because [SEM] is going to remain conscious, she can say yes to the c-section but if the court determines she has capacity, at any point she can say no to blood products. It is not simply that we can accept a decision, we need to know what all the decisions are she is consenting to […] Clinicians need to know what her wishes are and what she consents to, and they don’t know this.”
Ms Kohn reminded Moor J that:“decisions about birth are difficult but they are ones that half the population has to grapple with. This is not a situation where a medical procedure is suggested which SEM can choose to have or not to have. One way or another, the baby has to come out”. She submitted that “it’s a manifestation of SEM’s psychosis that she dwells on particular aspects of care offered to her and asks questions without ever being able to come to a conclusion”.
She encouraged the judge to prefer the evidence of Dr A, who specialises in this area of mental health and had seen SEM repeatedly. She added that “the suggestion that there is personal animus by Dr A towards SEM or by SEM towards Dr A where she only manifests psychosis to them is not borne out in the evidence”. She drew the judge’s attention to a table she had sent him, summarising SEM’s interactions with her healthcare workers. At this point the judge interrupted “I’m not going to consider this, it’s 13 pages”. So instead, Ms Kohn gave a summary of its contents, which provided an overview of the discussions that had taken placed with SEM over the last few months and the notes those interacting with her had made about her behaviour. She said:
“By now you’ve probably got the gist of my submissions – that SEM’s failure to engage, paranoia and suspicion is not reserved for Dr A. It is manifesting throughout. It is discernible by a number of staff. There is a longstanding lack of trust and lack of engagement which puts SEM and her baby in danger. That goes to inability to understand and retain information relevant to the decisions she has to make. She can’t keep hold of a decision, circles back round the points made.”
Ms Kohn then went on to consider whether there was evidence that SEM had an ‘impairment of, or disturbance in the functioning of, the mind or brain” (per section 2 of the Mental Capacity Act 2005). She noted that Dr A’s evidence was that SEM had a diagnosis of psychosis. She mentioned the Trust were now in receipt of the Tribunal’s decision (adding that the other side already had a copy but had chosen not to share it because SEM did not want it to be shared). She noted this decision was “not binding but it is a persuasive judgment made by a competent court”. She highlighted that Dr B argued in the Tribunal that SEM was not suffering from a disorder, and the Tribunal had preferred the evidence given by Dr A, that she was suffering from psychosis. “So, we know she is suffering from a psychotic illness, and we argue that a causative nexus is thus made out.”
Her next submission was as follows:
“In post-legislative scrutiny of the Mental Capacity Act, the House of Lords said that the presumption of capacity can be used to support non-intervention because professionals struggle with how to apply principle or use it to avoid taking responsibility. It is regrettable that this application has been made so late. It would have been simpler for the Trust to say ‘go ahead with c-section and rely on section 5 [of the Mental Capacity Act] to save SEM’s life’. But where she has articulated she would not consent to hysterectomy/transfusion, it would not be proper for them to proceed. Nor would it be appropriate to declare she has capacity but at the point where her life were in jeopardy for the Trust to act contrary to her wishes. Those two scenarios cannot be married.”
She, like Mr Westgate, urged Moor J to reject the option of an anticipatory declaration, stating “I would forcefully caution against pursuing that path”.
Ultimately, as the judgment makes clear, Moor J found the evidence of Dr A more persuasive (he described Dr B as ‘not having the full picture’) and found that SEM had not given valid consent, and in any case lacked capacity to do so. It also interesting to see how the recent decision of the Mental Health Tribunal influenced this case; it was mentioned at various points in Moor J’s oral judgment. Whilst the decision of the Tribunal does not bind the Court of Protection, it was obviously persuasive as a “decision of another competent court” and it was notable that thing SEM had said in that hearing were then discussed in this hearing as evidence of her illness. The Tribunal’s preferring of Dr A’s evidence also appeared to influence the judge’s thinking.
2. Did SEM have litigation capacity?
The question of SEM’s litigation capacity was not the focus of the hearing but is important. In all the cases I have previously observed in the Court of Protection, it is accepted that the person lacks capacity to conduct the proceedings, meaning they are unable to instruct their own legal representative and are represented via the Official Solicitor, acting as their litigation friend. Although SEM had instructed her own legal representative in this case, her litigation capacity was contested.
Mr Westgate finished his submissions by speaking of SEM’s litigation capacity. He emphasised that SEM should be presumed to have litigation capacity until the reverse is demonstrated, and that no direct evidence had been put forward by the Trust to rebut that presumption. He pointed to the fact that SEM had instructed her solicitor throughout the case, which he argued demonstrated her capacity to do so:
“As we stand, there is nothing to show she doesn’t understand the issues, and the issues aren’t complicated. So, there is no need for Official Solicitor to act on her behalf, and the conduct of the case by her doesn’t show a lack of understanding.”
A statement was also provided by SEM’s solicitor (who did not give oral evidence) which confirmed that she had never had difficulties getting instruction from SEM (except the day after the Tribunal) and considered her to have an understanding of the key issues, and thus litigation capacity, throughout.
I did not hear any direct submissions made by Ms Kohn regarding SEM’s litigation capacity. However, the Trusts’ Position Statement (kindly provided by their solicitor) stated “the unanimous view of all those involved in [SEM]’s care is that she lacks capacity to conduct proceedings” as well as lacking capacity to make decisions about the caesarean.
It is considered very unusual for individuals to lack capacity to make decisions on the subject matter before the court while retaining capacity to litigate about this matter (as was emphasised in the Trusts’ Position Statement, citing Mostyn J’s judgment in Re P  EWCOP 27 where he says that such a finding should be “virtually impossible” and “as rare as a white leopard” (see also “Capacity to litigate”). Moor J ultimately concluded that SEM lacked capacity to litigate, almost as a matter of course. This left a very strange situation where SEM had conducted proceedings on her own behalf, but should not have been allowed to do so due to a lack of capacity.
These cases are profoundly difficult and it is disturbing as an observer to see intimate decisions taken about an individual who isn’t present.
I did wonder whether the case would have been different if a decision regarding SEM’s litigation capacity had been made sooner. Ms Kohn at one point suggested that the Official Solicitor might have helped maximise SEM’s participation, because their agent could have visited SEM and taken a statement from her. She was also critical of SEM’s solicitors for ‘refusing’ to accept that SEM lacked litigation capacity and taking instructions from her when she ‘clearly’ lacked capacity. However, it is very common for the Official Solicitor to take a position which is against the person’s expressed wishes[ii] so it may have been that SEM’s views would have been even less present, because there might not have been anyone making submissions which directly reflected her position.
I also wondered whether in this case it might have been possible to support SEM to make a decision for herself. Mr Westgate suggested that with the right support, SEM was able to come to an informed decision, and it did seem that, based on the timeline presented, she was close on a number of occasions to giving consent to a caesarean, albeit with some reservations. She had also expressed feeling rushed into making a decision (although Ms Kohn disputed whether this was the case and suggested an inability to make a settled decision was caused by SEM’s diagnosed psychiatric illness). She did not, as far as I know, relay to the judge whether, by that point, she would consent to the procedure. The emergency nature of the application perhaps overtook things, and it appeared that a key concern for the Trusts and for Moor J was that if the procedure went ahead on the basis of SEM’s consent, she might change her mind midway or refuse necessary ancillary care. This, it was said, would leave the healthcare professionals in an untenable position of either proceeding without consent or allowing SEM to die. With this in mind, as well as the clear views of her treating team, it is perhaps unsurprising that in the absence of clear consent from SEM, a lack of capacity was established to allow arrangements to be made.
Ruby Reed-Berendt is a Research Associate and PhD Candidate at the School of Law, University of Edinburgh. Her research focuses on mental health and mental capacity law from a feminist perspective. You can check out her academic website to learn more about her work, and you can follow her tweets @rubyreedberendt
[i] All quotations are based on contemporaneous notes taken at the hearing, and may not be verbatim.
[ii] A further exploration of this situation can be found in Alex Ruck Keene, Peter Bartlett and Neil Allen, ‘Litigation Friends of Foes? Representation of ‘P’ before the Court of Protection’ (2016) 24(3) Medical Law Review 333-359, which is available open access here.