Protecting human rights in childbirth

Mental capacity

Women’s consent is needed for every medical procedure, however minor, except in a life-threatening emergency when the woman is unable to make her wishes known, and in cases where a woman has been deemed to lack capacity. If a woman is deemed to lack capacity, decisions about her treatment must be made in her best interests. The Mental Capacity Act (2005) or the Adults with Incapacity Act (Scotland) (2000) set out the factors that should be taken into account in deciding someone’s best interests.

In our recent work with Birth Companions on the experiences of women facing multiple disadvantage, midwives raised concerns about whether women with cognitive or learning needs were always being appropriately identified and supported to make decisions about their care. They felt that concerns about whether a woman had capacity may be less likely to be followed up, and decision-making support less likely to be offered, if a woman was perceived to have made the “right decision”. NHS Trusts may be in breach of Articles 8 and 14 of the European Convention on Human Rights if they fail to provide equal access to care which promotes women’s autonomy in decision-making.

In 2017, we hosted a seminar with 39 Essex Chambers and Queen Mary University on “Childbirth and the Court of Protection” to take a critical look at forced caesarean decisions. 90 senior judges and lawyers considered issues of mental capacity and decisions in childbirth, implications for protected characteristics and discrimination, and the need for multi-professional expert witnesses in Court proceedings.

Birthrights will be developing our work on human rights issues that arise for pregnant women facing questions around their mental capacity in the coming months.

With thanks to the Esmée Fairbairn Foundation for supporting this work.