Protecting human rights in childbirth

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Another court-ordered caesarean case

It is rare to hear of court-ordered c-sections in the UK, but the second such case in recent months has just been reported. The High Court ordered that a c-section could be performed on a woman suffering severe mental health disorder who lacks mental capacity to give her consent to the operation. The judgment is available here.

Confusingly, the judgment bears the same name – Re AA – as the judgment reported in December. I wrote about that case at the time and criticised the court for conducting a remarkably inadequate assessment of the woman’s best interests. This decision is factually quite different. Reassuringly, the court showed a much more sensitive and balanced approach to the evidence.

As in the first Re AA, the court was asked to give legal authority to a hospital seeking to carry out a c-section on a woman who lacked mental capacity within the terms of the Mental Capacity Act 2005. In this case, the woman was suffering from bipolar affective disorder and had been sectioned under the Mental Health Act 1983. She was ‘confused and disoriented’ and her father described her as ‘violent’. The capacity assessment by her treating psychiatrist stated that she believed that her baby should not be born until its due date in February. Her membranes had ruptured at least 48 hours prior to the court hearing and she had not gone into labour. The doctors believed that the women would actively resist induction and therefore sought an order authorising the performance of a c-section (peculiarly describing it as an ‘elective cesarean’) on the basis that there was a serious risk of infection after prolonged membrane rupture.

The judge, Mr Justice Hayden, granted the order authorising the c-section and associated procedures. He also ordered that ‘all reasonable steps are taken to minimise distress to AA and to maintain her greatest dignity.’ There was no question of the mother and child being separated after birth and they would be transferred to a mother and baby unit where she would be able to care for her child.

There are some important differences between this decision and the first Re AA:

– The case was held in public (subject to an anonymity order to protect the woman’s identity) and the judgment was published immediately. As we learnt from the secrecy that surrounded the AA decision, which led to widespread misreporting, public decision-making is critically important for maintaining confidence in the judicial system. The judge in this case was presumably aware of Lord Justice Munby’s admonition following Re AA that more Court of Protection judgments needed to be published.

– The woman’s partner and family were actively involved in the proceedings and gave evidence to the court. The judge clearly took into account their serious concerns for her health and her partner’s view that if she had capacity, she would accept the doctor’s advice.

– The clinical risk to the woman was more significant and urgent than in AA (in which the woman was not in labour and the obstetric risk was fractional). Her membranes had ruptured at least 48 hours before the court made its decision and she had not gone into labour. The evidence on infection risk after membrane rupture is contested but there is no doubt that the risk was real and serious (the NICE Guideline on intrapartum care recommends induction after 24 hours). It is questionable whether pursuing induction, which would have required considerable use of physical restraints over a long period, would have been a humane course of action.

– There was at least fleeting recognition by the judge that the c-section was ‘major surgery’ and the court’s decision whether to compel the operation was an ‘onerous one’.

– The judge addressed the fact that the surgery inevitably required a ‘facilitative deprivation of liberty’. He clarified the relationship between the Mental Capacity Act and the Mental Health Act, making it clear that the MCA could not be invoked when a person was subject to detention for treatment under the MHA and that the order was therefore made under court’s inherent jurisdiction (thanks to Lucy Series for making this point).

I speculated in my discussion of Re AA that there would be cases in which a court-ordered c-section could be justified. This appears to have been one of them.

Elizabeth Prochaska