England and Wales Court of Protection Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		11th December 2013

MR. JUSTICE PETER JACKSON:

1. This is an application in the Court of Protection, made by an NHS Trust for the benefit of a thirty-six year old woman who is currently heavily pregnant and about to deliver her fourth child. She is represented by the Official Solicitor, who has made such inquiries as possible since he became aware of the circumstances yesterday.
2. The application concerns the situation that might arise if Mrs. P (as I will call her) should get into difficulties during the course of her labour, which is expected to be induced shortly after this hearing. It is said that because of mental health difficulties Mrs. P is unable to make decisions about her own medical treatment at the moment and that this would particularly be the case during the course of labour if it ran into difficulties.
3. I am going to make the order that the health trust seeks, that order not being opposed on Mrs. P's behalf. It will be in these terms:

I declare that Mrs. P lacks capacity to consent to medical treatment relating to the delivery of her expected child, including to induction by artificial rupture of membranes and to Caesarean section.

I further declare that it shall be lawful, as being in Mrs. P's best interests, to be treated by, firstly, immediate artificial rupture of the membranes and instrumental delivery; and, secondly, if, in the opinion of her consultant obstetrician, it is necessary to avoid significant bleeding as a result of scar dehiscence or to avoid foetal distress, or any similar significant threat to Mrs. P's health for her to have a Caesarean section.

I declare that it shall be lawful for sedation and proportionate force to be used, if necessary, in providing that treatment to Mrs. P.

4. The current situation is that Mrs. P is in hospital awaiting the arrival of her baby. She is relatively calm and accepting of the idea of being induced as described. However, that may change if she was to become agitated during her labour, as she has been in the recent past. There is a good chance that she will be able to give birth by normal means. That is the outcome which everybody hopes for. However, if that does not happen it is said, and I so find, to be in her interests for emergency measures to be taken for the benefit of her physical and mental health by means, as a last resort, of a Caesarean section.
5. This order is therefore in the nature of an authority to the doctors to intervene if it turns out to be necessary. It may not. However, it clearly would be impossible if difficulties arose in the course of labour for the matter to be subject to the sort of hearing which has taken place today. I am clear that the essential facts are now before the court and that they are not going to change in the next few days.
6. This has been a public hearing, during the course of which I have heard from the parties' advocates, from three consultant doctors by telephone link, and from the Official Solicitor's case manager. The hearing has taken place in open court in the presence of representatives of the media. With their assistance I have made a reporting restriction order that provides a level of protection for Mrs. P alongside a relatively limited interference with any right to publish information. All that is embargoed is the name, address and image of Mrs. P, the details of her family, the identity of her treating doctors, and, while she remains under its care, the identity of the Trust which is a small one. Once Mrs. P leaves hospital, as I hope she soon will, the identity of the Trust can be published.
7. Those members of the media who are present have followed the proceedings and are in a position to inform the public in whatever way they think best. I cannot envisage circumstances in which an important matter of this kind would be dealt with in any other way. The court's only concern is that the interests of incapable or vulnerable people are not needlessly sacrificed. The time will surely come when responsible commentators will realise that attending hearings or making inquiries of the court as to how, and why, the decision has been reached will almost always lead to a fuller understanding and that it will no longer be respectable to fail to make basic inquiries and then to caricature the process as having somehow been closed or secretive.
8. Mrs. P has a difficult life history. She is now socially isolated. She has three older children - two who were born in the 1990s by normal vaginal delivery, but were subsequently taken into care; and a third, born some years later by Caesarean section, who lives overseas. She is now in about the thirty-sixth week of her fourth pregnancy. Among Mrs. P's difficulties are that she suffers from Type 2 diabetes; that she has in the past developed post-natal depression; and that in more recent times she has suffered from mental ill-health which is now thought to be paranoid schizophrenia. She is, from time to time, psychotic. In August 2012 she needed five months of in-patient treatment. Having recovered, she was offered a regime of medication which she has not always taken reliably.
9. The current application came into view on 23^rd November, when Mrs. P was found to be in a distressed and delusional state at home, following which she was compulsorily admitted to a psychiatric hospital. Her medical difficulties affect her current situation in a number of ways. From the physical point of view her diabetes impacts upon her pregnancy. She has a large baby and excessive amniotic fluid. The inter-relationship between the pregnancy and the diabetes is delicate. From the point of view of her mental health, the anticipated birth against a background of three lost children is obviously very difficult indeed.
10. Nonetheless, the court - or, indeed, any other public authority - has no right to interfere in the affairs of any person with mental capacity. If one has mental capacity one can decide, as one wants, for good reason, bad reason, or no particular reason. However, in this case, the obvious concerns about Mrs. P's mental health have led to her being assessed by a series of no fewer than four senior psychiatrists, all of whom have, in varying degrees, reached the conclusion that she lacks capacity. The test that all must apply is contained in s.3 of the Mental Capacity Act 2005: A person is presumed to have capacity but will not do so if unable to understand, retain and weigh the information relevant to the decision. None of the psychiatrists that have assessed Mrs. P in the course of the past week or ten days find that she has the ability to weigh information. Most, I think, have concerns about her ability to understand and retain it. I have heard from Dr. L, a consultant psychiatrist that in her opinion, although calmer today, in the very recent past Mrs. P has been psychotic and thought-disordered. Dr. L is of the view that she lacks capacity to understand the consequences of choosing or refusing a Caesarean section and that she is highly unlikely to recover it in the coming hours - indeed, it may take weeks or longer, at best, for her to have stabilised following the birth and resumption of medication.
11. I therefore consider that the Trust has passed through the gateway that is necessary to enable this court to make any orders at all.
12. Evidence has been taken from Mr. B, a consultant obstetrician, which clearly sets out the options. These begin with awaiting spontaneous labour. That, he regards as being risky in terms of her diabetes and in terms of the need for an emergency intervention. Secondly, an induced labour. This is advantageous because it can be planned for and the best possible support made available at the time of delivery. Thirdly, Caesarean section as a contingency should things become difficult. Of all the obstetricians, Mr. B has had the closest contact with Mrs. P. It is to be hoped that co-operation will continue.
13. I further heard from Dr. N, anaesthetist, as to how matters would proceed if there was a need to move to an emergency Caesarean.
14. Against that background there is no dissent as to what the considerations are with regard to Mrs. P's best interests.
15. I have regard to, and do not repeat, the matters set out in s.4 of the Act. They are encompassed in what I am about to say. Against the course proposed is the fact that, perhaps informed by her previous experience, Mrs. P is very opposed to having a Caesarean section. It conflicts with her strong views. Next, it should be said that to perform an operation of this sort without the consent of a capable patient would be a most serious infringement of anyone's personal liberty. Whether or not a patient has capacity, it is an intervention of a very serious kind. It involves possibly the need for restraint and sedation, followed by major surgery from which the patient has to recover. A further disadvantage is that, like all major surgery of this kind, risks of some kind are entailed by virtue of a general anaesthetic. In the case of Caesarean section there may be some threat to the patient's future child-bearing ability.
16. As against that, the evidence establishes that if Mrs. P got into difficulties during the course of her labour, there would be a small, but not insignificant, risk that she would develop serious bleeding - in particular, as a result of the breakdown of her former Caesarean scar. That situation would be potentially life-threatening.
17. Next, there is no doubt at all that it would be in the best interests of Mrs. P for her baby to be safely delivered. The court cannot be concerned with the interests of the unborn child, but can, and does, have regard to the extremely adverse effect on Mrs. P if unnecessarily her child was not born safely or was born with some avoidable disability as a result of a lack of obstetric care which might have been given. Furthermore, the proposal that the Trust makes offers the best chance of a secure labour and delivery for Mrs. P if it is approached in a planned way rather than awaiting the chance moment.
18. The fact is that this decision has to be taken on Mrs. P's behalf because she simply cannot appreciate the risks of one course and another. Looking at it from the point of view of her best interests and giving full weight to what she feels and believes, I am entirely satisfied that the balance falls decisively in favour of the approach proposed by the Trust which will give Mrs. P a good chance of having a normal labour, but will provide her with safety if it were to be necessary.
19. Accordingly, I find that the course proposed is in her best interests. I will so declare. That concludes this judgment.
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