Protecting human rights in childbirth

Birthrights’ concerns about mental capacity and human rights in maternity care

In recent months, the Court of Protection has ruled on a number of cases permitting doctors to carry out Caesarean sections on women against their wishes, either because they lack capacity to make the decision for themselves, or because their healthcare providers are worried that they might lose capacity during labour.

In one recent case which Birthrights commented on, a woman with depression and a history of experiencing psychotic episodes had capacity and stated that a Caesarean was “the last thing she would agree to”. Her medical team sought – and were granted – permission to carry out a Caesarean birth if she lost capacity and they deemed it necessary. This seems a very precarious position on which to base a request to carry out major surgery against a woman’s will. Moreover, the woman in question was not represented at the hearing, and therefore had no opportunity to have her views and wishes heard by the Court. This echoes an earlier case where the Judge criticised the Trust for bringing an application Out of Hours, leaving the woman without legal representation, when the case could have been brought earlier.

In another case, the Court ruled that a woman with a learning disability and “behavioural problems” could be asked to come to the hospital under false pretences, sedated using drugs hidden in a drink, restrained if necessary and given a Caesarean under general anaesthetic. A vaginal birth was judged to be “extremely risky” for the woman, despite her desire to give birth in this way and “retain autonomy over what happens and her body”. Though she was deemed unable to understand and weigh information to make decisions, she was able to clearly express choices about her birth, including the pain relief she did and did not want, and the people she wanted with her in labour with her housing unit worker. Commenting in The Sun, Birthrights reflected “We can all imagine how distressing and traumatising [the planned approach] would have been for her”. Thankfully, judgment contains a postscipt with the “happy news” that the woman did give birth vaginally shortly after the hearing, despite Caesarean birth under general anaesthetic having been described as the “only safe way to manage labour” during evidence. In the postscript, the Judge commented on this reminder of the “capaciy for individuals to confound judges’ assessments”.

Birthrights has significant concerns about the issues raised in these cases. Procedurally, it is very worrying that many applications seem only to reach the Court of Protection very late, leaving women without adequate representation and in some cases with no representation at all. Without sufficient legal support it is difficult to see how women’s choices and preferences can be considered by the Court. Women with capacity have the right in UK law to make decisions about their care. For a woman who is deemed to lack capacity under the Mental Capacity Act 2005, decisions about care should be made in her best interests, guided by her preferences. See Birthrights’ ‘consenting to treatment’ factsheet for more information.

Many recent cases involve women who are already under the care of psychiatric or other specialist teams, leading Birthrights to question whether advance decisions were considered. In addition, if it was thought likely that a ruling from the Court would be needed, there should have been every opportunity to apply to the Court in a timely manner, to ensure that the woman had the support and representation she needed.

More fundamentally, Birthrights has concerns about what assumptions are being made by the Court in coming to judgments. Whilst the cases invariably state that the woman’s best interests are paramount, it is almost always assumed that the safe birth of the baby must be in her 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. Evidence shows that women’s experience and recollections of birth are deeply impacted by whether she felt in control and had supportive relationships with caregivers. This can be particularly true for women facing disadvantage in their lives. It is vital that assessments of safety must encompass both physiological and psychological safety, in the short and longer term.

In addition, many cases focus particularly on evidence given on the risk of the woman giving birth vaginally, with statements like “the risks attendant upon an attempted vaginal delivery are so high that they plainly outweigh the risks linked to the proposed treatment plan” not uncommon. Despite this, two of the three most recent cases for which Birthrights has seen judgments include postscripts noting that the woman had given birth vaginally shortly after the hearing. Whilst the obstetric situations may at times be complicated, it is vital that evidence on the risks of all options being considered is heard as part of the decision-making process.

Birthrights recognises that these cases can be challenging for everyone involved: for the woman at the centre, but also for the healthcare professionals in her care team and for the Court. Much more needs to be done to ensure that women’s rights are respected through advance decision-making where appropriate, through representation and ensuring that all relevant factors are taken into account in best interests decision-making. We are working with obstetricians, lawyers, psychiatrists, midwives and academics over the coming months to improve care for women, develop guidance for maternity care providers and to address the human rights issues which arise for pregnant women facing questions about their mental capacity.

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