Last week, a recent Court of Protection case involving a woman with agoraphobia was reported in the media. The woman, known as GH, had been in labour at home for nearly 72 hours and the ruling describes her labour as having become “obstructed”. The case was heard as an emergency out of hours hearing. The Judge ruled that her agoraphobia and anxiety had “overwhelmed her ability” to make a decision and that it was in her best interests to be transported and admitted to hospital for obstetric care, with “mild sedation” and physical restraint appropriate if necessary. As always with these cases, the ruling paints a picture but does not outline the detailed evidence heard; it does say that GH’s partner and family were supportive of the application.
Nonetheless, the ruling raises concerns which we have seen played out in other cases in the past. GH had opted, as many people do, to have a home birth despite “not meeting the criteria”. There were no qualms about her capacity to make that decision. Much is made of the assertion that she had “in fact agreed to be admitted to hospital should this be required” and doubts about her capacity only appear to have been raised at the point when transfer was recommended and she declined it. Yet it is not clear whether and how her agoraphobia had changed in between these two points. The ruling describes her as being “fixated” on the importance of staying in her “safe space” and that this prevented her from making a balanced decision. Many women and birthing people feel very strongly about the importance of feeling that they are in a safe environment as they give birth. It is very difficult to tell on the face of the ruling whether her desire to stay in her “safe space” was a reinstatement of the factors that had been particularly important to her decision-making in the first place, or whether it was indicative of an exacerbation of her agoraphobia.
Even if the latter, this should not have been surprising. GH was known to be agoraphobic. Indeed, she had not attended any antenatal care outside of the home during her pregnancy and had declined all scans. There is no indication in the ruling that any advance care planning had taken place to explore strategies to assist GH if transfer was recommended and she wished to accept the recommendation. Neither is there any indication of advance planning to understand what she might want if her agoraphobia did become overwhelming, to support the court in the making of a best interests decision. It seems that much more could have been offered antenatally, which may have either prevented the situation arising in the first place, or at the very least provided a great deal more evidence on GH’s considered views, priorities, risk tolerance and wishes.
As is often the case, the decision appeared to turn predominantly on the clinical risk described as being inherent in GH staying at home. The situation was clearly troubling for GH’s healthcare team, and the obstetric consultant’s evidence is spelt out in helpful detail. Yet it is perturbing to once again read a judgment that explicitly takes account of the interests of the unborn baby in drawing conclusions about GH’s best interests on the grounds that she was “desirous of a safe birth”, regardless of the impact on her of being forcibly transported to hospital and potentially given a Caesarean under general anaesthetic. Many people are desirous of a safe birth yet decline recommended care. GH did in fact go on to have the home vaginal birth she wanted “before it was possible to execute the arrangements authorised by the court”.
Finally, this case raises interesting questions about the support for healthcare professionals who find themselves involved in capacity cases. Recent research by University College London highlights a wide variation in practice and low confidence amongst clinicians in carrying out mental capacity assessments. It includes calls for more support for clinicians in discharging “their legal and professional responsibilities”. This case introduces an additional angle: use of “reasonable force”. The obstetrician involved was asked by the court to advise on appropriate restraint to assist in transporting GH to hospital against her will: a significant responsibility and likely to be a challenging judgment call, even for an experienced doctor.
As we have stated previously, it is clear that these cases are complex and difficult for healthcare professionals and everyone involved. This is particularly true of emergency and out of hours hearings, with evidence heard in the middle of the night. However, as hard as they must be for all involved, they must surely have the greatest impact on the woman or birthing person at the centre. In labour, given very little time to prepare, and with no formal mechanism for their voice to be heard.
It is vital to remember that, however difficult the case, fundamental rights are at stake. The ruling in GH states that “a person who lacks capacity has the same human rights as a person who does not lack capacity”. It is arguable whether that is indeed the case when questions of mental capacity arise during labour. Much more is needed across healthcare and the courts to ensure that women and birthing people have access to rights-respecting care even when their mental capacity is in question.