By Claire Martin, 14th October 2025
DH is a 21-year-old woman with a diagnosis of catatonic schizophrenia, which (according to §2 in the Trust position statement) is an extremely rare mental disorder in the Western world. Symptoms include stiffness in the body, staring into the distance, minimal movements and mutism, in addition to more “typical” schizophrenic presentations, including auditory hallucinations. She had been under the care of mental health services since the age of 14.
In 2021, when she was 17, she went to Somalia to be with her grandmother, and she returned to the UK in July 2025. When she arrived at hospital the following month, having had a fall, clinicians realised she was eight months pregnant.
The identity of the father of the unborn baby is unknown, and the circumstances of its conception (in Somalia) are unclear. There are obvious safeguarding concerns regarding this based on DH’s cognitive functioning and poor mental health. The question of how she became pregnant will be followed up by Social Services.
She does not appear to have been in contact with any health services during her pregnancy, and had received ‘minimal, if any, antenatal care’ (judge). Thankfully her unborn baby was developing healthily and DH was, physically, well.
The application before the court was for a declaration that DH lacked capacity to consent to the proposed birth plan – a Caesarean section under general anaesthetic, proposed for the day after the hearing – and that this plan was in her best interests.
I observed this urgent hearing (COP 20021347) before Ms Butler-Cole KC, sitting as a deputy High Court judge in the Royal Courts of Justice on 8th September 2025, when DH was six days from her expected due date on 14th September 2025.
The Trust had tried to engage with DH about the birth-plan. The position statement for the Trust (helpfully shared with me by Emma Sutton KC, counsel) describes how health care professionals had complied with Section 1(3) of the MCA 2005 requirement to provide “all practicable steps” to help her engage. An assessment was completed with her mother and brother present (they could translate into Somali for DH, though she can speak fluent English). A midwife visited to support her, and ‘simple language’ and an ‘easy-read leaflet’ were used, as well as pictures of a vaginal and caesarean birth. It was reported that DH showed very little engagement, saying ‘OK’ on one occasion when general anaesthetic was mentioned in relation to Caesarean section.
DH’s family members are in agreement with the Trust’s birth plan: that a Caesarean is necessary because DH can’t ‘push’, which would be needed for a vaginal delivery.
Further, ‘DH’s obstetric team (supported by the psychiatric team) do not consider that DH would be able to tolerate a (prolonged) labour to deliver her baby safely and that there is a very high likelihood that she would become distressed during the labour process and would have to undergo an emergency caesarean section. In those circumstances, the clinicians consider that it would be less distressing and safer for DH to undergo a planned Caesarean section to deliver her child’ (§7 OS Position Statement, provided by Parishil Patel KC following direction from the judge).
‘Ordinarily, a Caesarean section is undertaken using a regional (spinal) anaesthetic. But the clinicians do not consider that it would be safe to do so in DH’s case. She is unlikely to be able to remain still and/or communicate effectively for the anaesthetic to be administered and maintained safely (particularly in circumstances where she has a needle phobia). Thus, it would be in DH’s best interests to undergo any caesarean section under general anaesthetic as that offers the “safest and most controlled mode of pain relief” for this treatment’ (§8 OS PS).
Evidence
The court considered evidence first in relation to capacity, and then best interests.
In relation to capacity for pregnancy and birth decisions, one of DH’s clinicians (SS, a psychiatrist who had known DH since 18th August 2025) was cross-questioned in detail by Parishil Patel KC (counsel representing DH via her Litigation Friend the Official Solicitor). (Note: we are not allowed to record hearings, so quoted material purporting to represent what was said is based on contemporaneous notes and although they are as accurate as I could make them, they are unlikely to be verbatim.)
Counsel for DH: So, in terms of capacity to make decisions, as you are aware under the MCA […] in terms of understanding, how does mental disorder impact her understanding?
SS: Schizophrenia is a global brain condition – it can affect areas of the brain that are able to register and retain information. I suspect she has a disorder of consciousness associated with her disorder. She is unable to understand and then retain, weigh up and communicate.
Counsel for DH: Can I take each in turn. Is it your opinion that her schizophrenia means she cannot understand the information and why?
SS: I say because she’s unable to register it and retain it.
Counsel for DH: Aren’t they two different things – retain and register. Are you saying because of her mental disorder she cannot understand it, or are you saying she can’t retain it long enough to weigh it?
SS: She can’t even register.
Counsel for DH: Register – what do you mean?
SS: The capacity of the brain to input that data – she cannot do that, so she can’t retain it.
Counsel for DH: In terms of brain functioning, what is it?
SS: The exact brain mechanisms are not known.
This seemed an important distinction that the psychiatrist was making – in order to retain information, one has to ‘register’ it in the first place. His assessment was that he could not simply say that DH could not ‘retain’ relevant information (as specified in the functional test of capacity in the MCA 2005):
3. Inability to make decisions
For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
The psychiatrist was submitting (in effect) that first you must be able to put something in the filing cabinet in order to be assessed as able to retain it (or not).
DH’s psychiatrist had said that she had remained pretty much non-responsive throughout attempts to engage with her. He confirmed that this would be “consistent with the presentation, over a number of different assessments, consistent with schizophrenia”.
Counsel for DH: Can we be confident in saying that the way she presents is not her choosing to present in this way but a manifestation of her schizophrenia?
SS: Yes – people who choose not to engage have a different presentation to those with a disturbance of consciousness. It is consistent over a number of weeks, including when being seen in her home environment, she is not engaging.
Counsel for DH: So, not engaging with one person and not another?
SS: Yes
However, counsel for DH then drew the court’s attention to evidence that DH’s solicitor had, in fact, managed to elicit more of a response from her:
Counsel for DH: We have got the attendance note from the solicitor who visited last Friday. She said “DH was lying down and faced away. I went closer to the end of the sofa, so I was not crowding over her. Her father had positioned his wheelchair next to her to encourage her to [engage] I asked if I could ask her some questions and she quietly said ‘yes’. I asked about going to hospital she said ‘yes’, and I asked about c-section she said ‘yes’, I asked about medication and she said ‘yes’.” That’s different to the response that you elicited.
SS: Yes
Counsel for DH: How do you explain that?
SS: It could be that the treatment is starting to have an effect. It is still single word responses, we don’t know how reliable the responses are – we can’t be clear this is an informed response, she can’t demonstrate her own understanding. The patient would need to demonstrate her understanding, we can’t rely on that as evidence of her understanding,
Counsel for DH: But what you’re saying is, it wouldn’t change your assessment at the present time about [her ability to] understand, retain, use and weigh the information?
SS: No, it would not change my view that she cannot give INFORMED consent.
Counsel for DH: Okay. One of the things that occurred to us is that rather than being unable to make a decision is possible she might be ambivalent about it?
SS: That would be a high-level response. Ambivalence is a high level of functioning that I would not anticipate she would be able to do.
[…]
Counsel for DH: If one looks at her response to the solicitor in the way I have read out, does that explain ambivalence ?
SS: It’s difficult to say based on something in writing, in these cases a lot is based on observation, so it’s hard to say how meaningful her response was.
Counsel for DH: But you said earlier that doesn’t change your view that at the present time she lacks capacity to make the decision?
SS: Yes I don’t think she meets that threshold.
I thought this was an interesting exchange. On the face of it, the solicitor had been able to engage DH more successfully than the psychiatrist. However, the psychiatrist’s view was that the repeated ‘Yes’ responses did not demonstrate an ‘informed response’. This seemed an entirely reasonable conclusion to me.
In giving her ex-tempore (oral) judgment, Ms Butler-Cole KC said: “I don’t have evidence on which I can safely conclude what are her views on this plan. So far as anyone can tell, she seems to agree. But as Dr SS says it is impossible to tell whether that is meaningful agreement“.
The care plan for a Caesarean section under general anaesthetic the next day was authorised (with physical restraint “if necessary” but “those sorts of interventions are not likely to be needed”).
It was mentioned during the hearing that DH’s baby would be taken away from her. Emma Sutton reported: “The plan is for the C-section tomorrow around midday. The plan for post-delivery is raised by the OS. Children’s services are involved as one would expect. The speed at which the child is removed from DH’s care [is not decided]. The OS wants some form of supervisory contact before whatever happens, happens. Those discussions are ongoing, but I am told a police protection order is being considered“.
My one reflection is that there was no mention – at all – during the hearing of understanding DH’s presentation in the context of trauma. It was as if the historical sexual abuse (I don’t know the age or the details about this abuse) and whatever took place in Somalia that led to her becoming pregnant, are separate to her catatonia. I am sure the mental health teams will have gathered as much information as they can from DH ‘s family and her health records about her life, and it is unlikely that her extreme current psychological state is entirely divorced from what has happened to her. Perhaps her only sense of control (even unconsciously) is to totally withdraw from the world.
I am deeply disturbed by DH’s story and thoughts of how she became pregnant, and now her body in the hands of others again, followed by the loss of the baby she has carried for nine months. I hope that the delivery of DH’s baby went well for her and the baby and that DH is receiving good care and support.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social
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