Strand, London, WC2A 2LL |
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B e f o r e :
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OXFORD UNIVERSITY NHS FOUNDATION TRUST (1) OXFORD HEALTH NHS FOUNDATION TRUST (2) |
Applicants |
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AX |
Respondent |
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Victoria Butler-Cole KC (instructed by the Official Solicitor) for the Respondent
Hearing dates: 10 June 2025
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Crown Copyright ©
MISS NAGEENA KHALIQUE KC:
Introduction
My decision
A. Pursuant to section 15 of the Mental Capacity Act 2005 ("the MCA") AX lacks capacity to:
a) conduct these proceedings;
b) make decisions regarding her:
i. ante-natal care;
ii. mode of delivery; and
iii. related care and treatment; and
B. It is lawful and in AX's best interests pursuant to section 16 of the MCA to undergo a planned C-section on 11 June 2025 with all the ancillary care and treatment as set out in the Birth Care Plan filed with the court on 9 June 2025.
Background and procedural history
i) Evidence of psychosis;
ii) Abnormal blood tests including raised liver enzymes indicating a risk of pre-eclampsia;
iii) Ongoing gestational diabetes.
i) A transparency order preventing publication of AX's name and address, the names and addresses of her treating clinicians and where she is being treated; the order was valid up until the hearing on 10 June 2025;
ii) Interim declarations pursuant to section 48 of the MCA in respect of AX's capacity to make decisions about her obstetric care and her litigation capacity;
iii) Directions to file further capacity evidence, a detailed birth care plan, an update on AX's presentation and response to treatment, and any safeguarding concerns;
iv) The matter was listed before me for final hearing.
The issues
i) Does AX lack capacity to make decisions about her obstetric care and treatment, including whether to undergo a planned C-section tomorrow morning?
ii) In particular, is there a causal nexus between the impairment of the functioning of AX's mind or brain and the inability to make the specific decisions?
iii) Does the care plan give rise to any need for an authorisation to deprive AX of her liberty? This issue fell away at the start of the hearing as Mr Fullwood, on behalf of the Trusts explained that the care arrangements had been finalised to include:
a) The use of persuasion in the first instance;
b) Transient arm holds to administer anaesthesia safely;
c) No administration of general anaesthesia as a form of chemical restraint;
d) In the event of unmanageable emotional dysregulation and/or increased physical resistance by AX, no force or restraint would be used, the Applicants would review and return the matter to court;
Capacity: the legal framework
"7. The Law. The MCA 2005 states as follows:
1 The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to–
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable–
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–
(a) deciding one way or another, or
(b) failing to make the decision."
8. Lord Stephens, in A Local Authority v JB [2021] UKSC 52 explained that Section 2(1) requires the court to address two questions, the first being whether P is unable to make a decision for himself in relation to the matter [67], and the second being whether that inability to make a decision is "because of" an impairment of, or a disturbance in the functioning of, P's mind or brain [78]. Since the assessment of capacity is decision-specific, the court is required to identify the correct formulation of "the matter" [68]. The correct formulation of "the matter" leads to a requirement to identify "the information relevant to the decision" under s3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: [69]. The court must identify the "information relevant to the decision" "within the specific factual context of the case": [70]. Capacity may fluctuate over time, so that a person may have capacity at one time but not at another time. The "material time" within s2(1) is decision-specific; the question is whether P has capacity to make a specific decision at the time when it needs to be made: [64].
9. Lord Stephens went on to make clear that the information relevant to the decision includes information about the reasonably foreseeable consequences of a decision, or of failing to make a decision. These consequences are not limited to the "reasonably foreseeable consequences" for P, but can extend to consequences for others: [73]. There should be a practical limit on what needs to be envisaged as the "reasonably foreseeable consequences" of a decision or of failing to make a decision so that "the notional decision-making process attributed to the protected person... should not become divorced form the actual decision-making process carried out in that regards on a daily basis by persons of full capacity": [75]. P's ability to use or weigh information relevant to the decision as part of the decision-making process "should not involve a refined analysis of the sort which does not typically inform the decision... made by a person of full capacity": [77].
'62. ...in my judgment the information relevant to the decision on the matter in this case can usefully be derived from the questions that might reasonably be anticipated upon a member of the population at large being told that their doctor is recommending an elective Caesarean section and being asked whether or not they consent to that course. Namely, why do you want to do a Caesarean section, what are the alternatives, what will happen when it is done, is it safe for me, is it safe for my unborn child, how long will I take to recover and what will happen if I decide not to do it. Within this context, I am satisfied information relevant to the matter requiring decision by R in this case can be articulated as follows:
i) The reason why an elective Caesarean section is being proposed, including that it is the clinically recommended option in R's circumstances.
ii) What the procedure for an elective Caesarean involves, including where it will be performed and by whom; its duration, the extent of the incision; the levels of discomfort during and after the procedure; the availability of, effectiveness of and risks of anaesthesia and pain relief; and the length and completeness of recovery.
iii) The benefits and risks (including the risk of complications arising out of the procedure) to R of an elective Caesarean section.
iv) The benefits and risks to R's unborn child of an elective Caesarean section.
v) The benefits and risks to R of choosing instead to carry the baby to term followed by natural or induced labour.
vi) The benefits and risks to R's unborn baby of carrying the baby to term followed by natural or induced labour.
63. ....I consider that that relevant information will include some information concerning the impact on her unborn child of R taking or not taking a decision on the matter. R's unborn child has no separate legal identity until he or she is born. That position was confirmed in Paton v British Pregnancy Advisory Service Trustees [1979] QB 276, in which Sir George Baker held that a foetus cannot, in English law have a right of its own at least until it is born and has a separate existence from its mother, an approached affirmed by the ECtHR in Paton v United Kingdom (1981) 3 EHRR 408 in the context of Art 2 of the ECHR. But that legal position does not prevent the impact on the unborn child of taking or not taking a decision being information relevant to the matter requiring decision. Indeed, I consider it a safe assumption that one of the foremost pieces of information a pregnant woman would consider relevant in deciding whether to undergo any medical procedure during pregnancy is that of the potential impact on her unborn child.'
Best interests: the legal framework
Section 4 of the MCA 2005
"(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
.................
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
.............
(11) "Relevant circumstances" are those—(a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant."
45. ...The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament... But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being."
"49. The weight to be attributed to CP's wishes and feelings will differ depend on such matters as how clearly the wishes and feelings are evidenced, how frequently they are (or were previously) expressed, how consistent CP's views are (or have been), the complexity of the decision and how close to the borderline of capacity the person is (or was when they expressed their relevant views)."
'[28] …where the wishes, views and feelings of P can be ascertained with reasonable confidence, they are always to be afforded great respect. That said, they will rarely, if ever, be determinative of P's 'best interests'. Respecting individual autonomy does not always require P's wishes to be afforded predominant weight. Sometimes it will be right to do so, sometimes it will not. The factors that fall to be considered in this intensely complex process are infinitely variable e.g. the nature of the contemplated treatment, how intrusive such treatment might be and crucially what the outcome of that treatment maybe for the individual patient. Into that complex matrix the appropriate weight to be given to P's wishes will vary. What must be stressed is the obligation imposed by statute to inquire into these matters and for the decision maker fully to consider them. Finally, I would observe that an assessment of P's wishes, views and attitudes are not to be confined within the narrow parameters of what P may have said. Strong feelings are often expressed non-verbally, sometimes in contradistinction to what is actually said. Evaluating the wider canvass may involve deriving an understanding of P's views from what he may have done in the past in circumstances which may cast light on the strength of his views on the contemplated treatment'."
The evidence and my analysis on capacity
i) Joint written statement from Dr B, Consultant Psychiatrist and Dr D, Specialty Registrar, dated 4 June 2025;
ii) Oral evidence from Dr B;
iii) COP3 assessment from Dr C, Consultant Obstetrician dated 9 June 2025;
iv) Written statement from Dr A, Consultant Obstetrician dated 6 June 2025;
v) Oral evidence from Dr C;
vi) Email dated 10 June 2025 and brief oral evidence from AX's mother;
vii) Diabetes birth management plan dated 6 June 2025;
viii) Birth Care Plan dated 9 June 2025;
ix) Medical records;
x) Attendance note dated 9 June 2025 filed by the Official Solicitor's agent, Mrs Chapman.
Best Interests
i) Mental health factors: AX would be adversely affected by an adverse outcome to her unborn child and a planned C-section would likely result in the best outcome and reduce the chances that AX's acute psychiatric illness is prolonged;
ii) Medical factors: due to gestational diabetes there is a risk of growth restriction and still-birth and a planned C-section at 38 weeks is recommended. In addition, AX's inconsistent compliance with blood glucose monitoring and failure to attend scans at 32 and 36 weeks mean that a planned C-section removes the risk of a still birth due to unmonitored or uncontrolled diabetes;
iii) Risks associated with spontaneous or unrecognised labour, pre-eclampsia, uterine rupture and previous C-section scar rupture, are increased by AX being non communicative or non-verbal which may mean that signs and symptoms are not identified or reported;
iv) Risk of an emergency C-section include increased risk of haemorrhage;
v) A planned C-section at 38 weeks outweighs the reported risks of continuing a pregnancy in a woman with AX's risk factors (including gestational diabetes) as optimum maturity of the baby is obtained;
vi) As outlined above, the care arrangements have been modified to obviate the need for physical or chemical restraint and no authorisation for deprivation of AX's liberty within the meaning of Article 5 of the ECHR is being sought.
Post script: Happily, I have been told that AX was successfully delivered of a healthy baby boy on 11 June 2025, as planned by C-section which was uneventful and that she was calm, speaking in full sentences and extremely co-operative for the whole procedure.