Human rights concerns as Court permits Caesarean on woman currently with mental capacity

On Monday the Guardian reported on a Court of Protection ruling that permits doctors to perform a Caesarean section on a woman in case she loses capacity, against her express wishes. Birthrights has not yet seen the full judgment, however the reporting raises a number of very worrying questions about the process and its impact on the woman at the centre of the case.

The woman, who is not named, is described as having “depression and a history of experiencing psychotic episodes”, and as being under the care of a psychiatric team. It is reported that she had capacity at the point where the case was brought, and had made it clear that a Caesarean was “the last thing she would agree to”. Her obstetric team were reported to be concerned that she might lose capacity during labour and wanted an anticipatory order to permit them to perform a surgical birth “if necessary”. The Judge is reported to have described the request as “draconian” – nonetheless the order was granted.

Yet again, we have another case where a Caesarean is deemed in a woman’s best interests on the basis that it’s “necessary” or “clinically indicated”, regardless of the woman’s stated preferences. This is particularly worrying in this case for two reasons. Firstly, the woman is described as having capacity at the time of the hearing and having stated that she did not wish to have a Caesarean. Secondly, she was not even represented at the hearing.

These add up to a very concerning picture.  UK law is clear: a woman with capacity has the right to make decisions about her care, including decisions that her healthcare professionals do not believe are in her or her baby’s best interests. A woman who might be at risk of losing capacity during pregnancy or labour should be offered the opportunity make advance decisions about her care, and – regardless – her preferences should be used to guide any decisions that need to be taken if she does lose capacity. This application to the Court was made on a ‘just in case’ basis, suggesting the Court were being asked, in effect, to resolve fundamental disagreements about what the woman’s best interests might be in a theoretical situation that did not currently exist.

While we don’t know the details of the obstetric team’s case, it’s also important to remember that having a mental health condition or diagnosis absolutely does not mean someone automatically lacks capacity to make decisions.

Moreover, the woman had no opportunity to be heard by the Court as she was not represented by a lawyer. This is apparently because of the urgency of the hearing as the woman was “heavily pregnant and could go into labour at any time”. This cannot have been a surprise: the woman was under the care of a psychiatric team, who must have known about her pregnancy. There should have been plenty of time to have collective, constructive discussions with the woman about her care and about options if her capacity did fluctuate, or if different obstetric situations arose. Even where there is strong disagreement with the woman’s choice, there is no excuse for leaving her in a position where she was unrepresented and where therefore the Court was given no information or insight from her with which to make a best interests decision about whether she should undergo major surgery against her wishes.

This case also – again – throws open the question of what assumptions are being made in best interests decisions. Whilst these cases invariably state that the woman’s interests are paramount, it is almost always assumed that the safe birth of the baby must be in the woman’s best interests. However, rarely do these cases fully consider the psychological impact of being forced to undergo an unwanted invasive procedure, or the impact of having one’s choices ignored and overruled. We don’t know what evidence was brought forward on these issues in this case, but without representation it is difficult to see how the woman’s voice and her wishes could have been heard. This is unacceptable.

The Judge is reported to have described the case as “exceptional”. Unfortunately, in Birthrights’ experience this is not the case, with a steady trickle of worrying Court of Protection cases (such as this case from earlier in the year when the Judge raised concerns about the woman in question also being unrepresented at an initial hearing).

Over the coming months, Birthrights will be examining the issues in Court of Protection judgments on court-ordered Caesareans and the human rights issues that arise for pregnant women facing questions about their mental capacity.