For the second time this year, the Court of Protection has ruled it lawful to transfer a pregnant woman to hospital to give birth, apparently against her wishes.
The Court of Protection exists to make decisions on financial, welfare and health matters for people who ‘lack capacity’ to make the decision for themselves under the Mental Capacity Act 2005. A person can be assessed to lack capacity if they have an impairment or disturbance in the functioning of their mind or brain, which means that they are unable to make a specific decision when they need to. The law asks whether a person can understand the decision they need to make, retain the information they need for long enough to make a decision, use or weigh that information as part of the decision-making process, and communicate their decision. The law says that everyone has capacity unless it can be shown that they do not, and that a person must be given practical and appropriate support to help them make a decision if they need it. Where a person is found to lack capacity to make a specific decision, then a decision must be made in their best interests. In the most serious or complicated cases, those decisions are made by the Court of Protection.
Recently there has been significant work, particularly by the Open Justice Court of Protection project to make the work of the Court more accessible. This includes providing support and information for people to observe hearings (remotely and in person), as well as blogging about how decisions are made in the Court. In this case they note that despite attempts to gain access and the hearing involving other parties via video- link, they were told it was only possible to attend in person. Some members of the press attended, leading to newspaper reports of the case before the full judgment was available, but unfortunately we are not aware of any observers who were able to attend Court in person at the very short notice available. This inevitably makes commenting on the case harder, because it means relying on the summary of evidence presented in the ruling rather than hearing the discussion and the nuance first hand. Whilst it is always positive to see judgments made publicly available for scrutiny, there is inevitably the risk of losing detail in translation. Birthrights fully supports the work of the Open Justice project to open up and make the whole process of Court of Protection cases more transparent which will enable more informed scrutiny of cases such as this one.
In this case, the facts and the issues at hand are set out only briefly as the players in Court had come to “a large measure of agreement” by the end of the hearing. The woman in question – referred to throughout as “the mother” rather than the more usual “P” or initials – was said to be 21 years old with severe agoraphobia. She had only left the house on a “small handful of occasions” in recent years and had subsequently declined the majority of antenatal care. She had recently had a scan at home, which was described as being “less reliable than a hospital scan”, but there were no specific concerns described in relation to either her health or her pregnancy.
She was said to “prefer to give birth at home…due to her agoraphobia”, but was found to lack capacity to make this decision as her agoraphobia was “so overwhelming that it exerts a significant effect on her ability to weigh matters in the balance”. A consultant psychiatrist instructed as an expert witness also raised concerns about “short-term memory problems”. The judgment implies that the Official Solicitor may not have originally agreed with this position, but by the end of the hearing the Judge felt able to declare that all agreed that the “mother lacks capacity to make decisions about whether her baby should be born at home or in hospital”.
Thus, the ruling turns to making a decision on best interests. The Judge was at pains to say that the issue at heart was less a question of the relative advantages and disadvantages of home and hospital birth, but the particular issues which could arise in relation to transfer from home to hospital, should this be indicated during labour. The ruling focussed particularly on “urgent blue light ambulance transfers” and the potential “dilemma” which could arise if the woman declined as a result of being “overcome by her agoraphobia”. Whilst the ruling repeatedly states that this is a scenario that only “may” arise, the focus on transfer is not offset with any detailed consideration of the potential benefits to an agoraphobic woman of being supported to stay in a place where she said she wishes to give birth and presumably feels safest.
Instead the discussion concerns the practicalities of supporting transfer particularly in the “urgent blue light” scenarios. The ruling considers the difficulties of ensuring a full hearing in an emergency situation. This is a reasonably consideration on the face of it: in other cases, we and others have criticised the late bringing of cases to Court and the resulting lack of ‘voice’ given to the woman. However, despite the additional time and space offered by holding a full hearing ahead of time, it is still difficult to discern the woman’s voice in this case. She is said to “dearly wish to give birth to a healthy baby” – as do almost all women who find themselves in the Court of Protection. She is also said to “prefer to give birth at home”, with this attributed solely to her agoraphobia, and to have made it “very, very clear” that she did not want a “catastrophe” to occur during birth. The expert witnesses speculate in their opinions that she may be more likely to accept transfer in a medical emergency, but there is no indication in the ruling of whether the woman herself had expressed any thoughts on this matter, or indeed had been supported to think about her care, decisions, wishes and preferences should an obstetric emergency arise. There is no evidence heard from midwives – either those involved in the woman’s care or as expert witnesses. The voices of her mother and partner are heard, and are given sufficient weight as to suggest that they would overcome the woman’s described views: “I am satisfied that, but for her agoraphobia, the mother herself would opt for a hospital birth, as encouraged by her mother and partner”.
It is possible that this latter statement is accurate – in a brief commentary, lawyers involved in the case state that the woman wanted a hospital birth, suggesting there may be more to this case than appears in the ruling. But so much detail is left out that it is impossible to discern on the published documents. And it is simply not always possible to be there in Court in person to hear the details that may illuminate further.
The ruling declares that “it is in the best interests of the mother to be transferred to hospital for a planned delivery”, allowing her to be supported by known people in a calm and non-time-pressured manner. It allows the use of force and restraint, against the submission of the Official Solicitor (representing the woman’s best interests), and despite (some) recognition of the risk of psychological harm in forced removal from her home against her will. It is not very clear why the less restrictive option of supporting home birth but allowing transfer in an obstetric emergency was not considered in more detail (although in the most recent case in which an emergency transfer was considered, the woman went on to give birth at home before it could be carried out), beyond fairly brief references to the reduced resource available during the night and at weekends (see further commentary on this issue from Prof. Dominic Wilkinson on the Open Justice Court of Protection blog).
Once in hospital, the woman was declared to have capacity to choose between induction of labour and Caesarean section – without apparently the option of waiting for labour to commence physiologically. Concerningly, the ruling and the appended care plan indicate that she will be able to choose between “clinically available options” unless “it is clinically necessary to do so in order to prevent harm to M or her unborn baby”. This is a highly uncomfortable statement: if she has capacity to decide, she has capacity to decide including in emergency situations. Her choice cannot be circumscribed in this way. Similarly, the care plan sets out what the different options will “require” in terms of intervention and procedures, without caveating them as being interventions which will be offered for her to accept or decline.
In many ways having the care plan available in this way is to be welcomed. It provides detail that may often be lacking in other cases, and sets out how the woman will be supported by staff and birth partners during her period in hospital. However, parts of this care plan highlighted above raise questions as to the extent to which the woman’s capacitous decisions would be respected in practice. Our previous research has indicated that women with mental health diagnoses often feel scrutinised over their decisions in relation to birth. The woman in this case will have a mental health nurse outside her room, having been transported to hospital against her will, possibly using force. Every possible means may need to be available to support her to make the (capacitous) decision that is right for her, following such a profound and potentially highly distressing series of events. As always, this case is clearly complicated. It is also very hard to navigate when so much of the nuance is implied rather than stated in the ruling. For those of us who were not able to observe the hearing, much more information on the woman’s wishes and feelings on the variety of difference options and scenarios considered would make a big difference in evaluating what this case adds to our understanding of decision-making about birth in the Court of Protection. However, at the end of it, we are left with a woman being transferred to hospital whilst heavily pregnant, ostensibly against her will, apparently in her best interests. This cannot be anything other than concerning.
Much more work is needed to address the issues outlined here and in previous commentaries. The Open Justice Court of Protection project is doing excellent work to open up understanding of the #NotSecretCourt and we are keen to explore how we can work with them to bring participants with different expertise and experience of the Court together to address concerns about the representation of women, how their interests are understood by the Court, and the Court’s use of clinical risk information. We are also working with partners to develop projects on how clinicians identify and support women where there may be concerns about capacity at the earliest stages, to prevent cases from coming to Court. We will share more details of these vital projects in the near future.
POSTSCRIPT: Since writing this blog, a postscript to the judgment has been added, to note that the woman went into spontaneous labour at home, contacted the hospital, and travelled there with her partner, mother and community midwife, having received oral medication for anxiety. No further force was used and the woman has now returned home with her baby.