England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
(Sitting in Open Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/03/2016

Mrs Justice Theis DBE:

Introduction and Summary

1. The applicant Trusts provide obstetric and psychiatric care and services to the respondent, C.
2. They have made applications for an order (i) in the Court of Protection to permit the applicants to undertake various steps and measures in respect of C's forthcoming labour; and (ii) a reporting restrictions order.
3. C has a long standing bipolar affective disorder. She is in the late stages of her pregnancy, which has led to a relapse in her mental condition. She is currently detained under section 2 Mental Health Act 1983, in a psychiatric unit run by one of the applicants, suffering from a severe manic episode.
4. In discussions with C prior to her admission she had indicated that she wished to have a natural delivery, however it became increasingly clear to those with responsibility for her medical and psychiatric care that was going to be very difficult to manage safely, in the light of her circumstances. As a result the decision was made to apply to the court for the orders sought.
5. The respondent, C, has been represented throughout, through her litigation friend the official solicitor ('OS'). Having considered the written evidence the OS wished for various matters to be explored in oral evidence, in particular less interventionist procedures for the birth. At the end of the oral evidence on 1 March 2016 Ms Leventhal, on behalf of the OS, stated that their position on behalf of C was they would not oppose the orders sought.
6. C's mother, Ms X, and the father of the unborn child, Mr A, were given notice of the application and the opportunity to participate in the hearing. Ms X gave oral evidence after hearing the medical evidence, she obviously found the position very difficult. She understood why the application had been made, she would like C to experience some of the birth process but recognised the position needed to be kept constantly under review and, depending on C's state of mind, could see that a caesarean section may be the only option. Mr A's views were relayed to the court through the applicant's solicitor, he wanted to ensure that whatever steps are taken, both C and the unborn baby are safe and helped C recover.
7. The court was given notice of the application on 25 February, a directions hearing took place on 29 February and the oral evidence was given on 1 March 2016. I announced my decision at the end of that hearing and made the necessary orders, with reasons to follow. This judgment sets out those reasons.
8. I concluded that C lacked capacity to make decisions about the medical interventions that may be required during the birth of her child. It was obvious she was not able to weigh the pros and cons of such interventions, in what was likely to be a dynamic situation with the need to understand and weigh up options at relatively short notice. The OS accepted C lacked capacity.
9. Having heard the oral evidence, in particular from the consultant obstetrician ('CO'), about the realities of trying to manage a birth in the circumstances C is in at the moment it is very likely that, unless there is any dramatic change in the position, the mode of delivery will need to be by way of an elective caesarean under general anaesthetic. In her written and oral evidence CO explained the difficulties and risks to C in conducting any other less interventionist delivery due, in particular, to C's inability to remain still and her unpredictable behaviour. In relation to each combination of delivery methods she was able to outline the difficulties and dangers in being able to do that with C as she currently is, recognising the need to keep the position under review. I am satisfied on the evidence I have read and heard that granting the declarations sought is in C's best interests.
10. The care plan proposed at the end of the hearing, which was approved by the court, clearly provided for regular reviews by the clinical team who are caring for C to consider and keep under active consideration the least interventionist way to manage the risks of the labour to both C and the unborn child.
11. I acknowledge this court has no jurisdiction in relation to the unborn child. I have been informed that the relevant Local Authority is actively involved.
12. Whilst recognising that the medical interventions authorised by the declarations sought involve serious medical treatment, the orders sought are permissive not mandatory. All parties have taken on board the need to keep C's capacity to make decisions and/or the need to take any of the methods authorised by the court under active review by her treating clinicians.
13. The applicants applied for a reporting restrictions order ('RRO') when they issued proceedings. They served the press in accordance with the practice direction. On 29 February 2016 I made a RRO which ensured orders were in place to prevent the identification of C. It became clear during the oral evidence on 1 March 2016, in particular from the consultant psychiatrist ('CP') who is responsible for C's clinical care, anonymisation may not sufficiently protect C. He said that due to the unusual circumstances of this application, the fact that C is probably one of a very limited number of people in her condition being detained in a mental health unit, the high risk that she would probably realise or easily learn that any report about this application, even in anonymised form, was about her would, in her current fragile mental state, risk causing her further psychological harm.
14. As a result of that oral evidence the applicants applied for a revised RRO that prevented any reporting about this application, even in anonymised form, which I granted. Whilst recognising that this more restrictive RRO had not been served on the press in accordance with the practice direction, Mr Farmer, from the Press Association, was in court and given the opportunity to make any representations. In the light of the evidence the court had heard he did not oppose the revised RRO, providing there was a hearing to review the terms of the order. It was agreed a period of 14 days would give sufficient time for the birth to have taken place and the post birth position to be assessed.

Relevant background

15. C has a long history of bipolar affective disorder of a relapsing remitting nature, with one previous compulsory admission to hospital under the MHA. Her condition has generally been well controlled by psychotropic medication (both antipsychotic and mood stabiliser).
16. When she was about 15 weeks pregnant she was referred to a midwife ('MW'), at that time there were no concerns about her pregnancy. She was caring well for herself and seemed positive about the pregnancy. Her relationship with the father of the unborn child, Mr A, appeared steady. Her wish was to have a natural birth and was supported in this by Mr A and Ms X. Although she didn't attend some of her ante-natal appointments, she co-operated with most of the necessary examinations and investigations.
17. At the time of her recent admissions she was described as having elated mood, pressure of speech, formal thought disorder and lack of insight. She was diagnosed as suffering a manic episode with psychotic symptoms and remained on the unit at the date of the application
18. During her recent admission there have been a number of difficulties, including C not being consistently compliant with taking her medication. She has recently been more compliant but the situation is very fragile, she remains very unwell and is frequently agitated.
19. Four days prior to the hearing before me she refused her medication and at a consultation with CO and CP her condition worsened; she became brittle, angry and confrontational with staff. CO was unable to explain to her the pros and cons of the options regarding the birth. She was able to tolerate less than 20 minutes of continuous tracing of the baby's heartbeat. Although she was given several breaks, discussion of the possible procedures and examinations led to increased agitation and she was unable to engage with explanations of what was planned. Even though she did subsequently undergo an ultrasound examination and tolerated a discussion with CO and CP about the possibility of a caesarean section and the risks of a vaginal delivery, she interrupted the explanations and refused to repeat back what she had been told.
20. Just prior to the hearing there were reports of more agitated behaviour, and of her being unable to engage with those caring for her for any sustained period of time. There had been an admission to hospital on the night between the two hearings, which although a false alarm illustrated the fragility of the position on the ground in trying to manage C's behaviour and medical condition.
21. The prognosis regarding C's mental health is that in the short-term with appropriate treatment her mental health will probably recover following the delivery of her baby; long term it is expected to remain stable with appropriate treatment, but she may experience relapses if she is non-compliant with her medication.
22. The applicants seek declarations that:

(i) C lacks capacity to litigate and make decisions about her obstetric care and treatment; and

(ii) it is in her best interests for her to receive treatment and care pursuant to the care plan, to include a caesarean section;

(iii) it shall be lawful to administer such sedation and/or use such physical restraint as is necessary and proportionate throughout her obstetric care, and in particular in advance of a caesarean section, to enable care to be provided and the surgery to take place safely.

The evidence

23. The court had detailed written statements from those who have clinical responsibility for her.
24. The consultant obstetrician, CO, has overseen C's care since early in her pregnancy and met her on 5 occasions. Her statement sets out in detail the procedures necessary in each mode of birth and the risks involved for C. She has direct experience of trying to examine C and discuss the pros and cons of the delivery options with her.
25. In her statement she confirms the following

'[a caesarean section] is only being considered as C is presenting as too acutely mentally unwell to manage labour and bring about safe delivery of her baby whilst keeping herself safe.'

26. Even though CO was permitted by C to perform some non-invasive examinations of her CO continues in her statement 'I am still of the view that C would not be able to tolerate labour and comply with the necessary directions required to keep her and her baby safe throughout that period.' Further in her statement she states 'I am of the view that from her current presentations and my experiences from the examinations she has allowed me to perform that she will not tolerate the examinations and treatments that may be necessary throughout the birth process. This will be even more significant should there be any complications during the birth that require intervention of any kind.'
27. She details in her statement the basic routine observations that are required to be undertaken during a delivery (such as 4 hourly assessment of blood pressure, pulse, temperature, abdominal palpation and vaginal examination, which may be increased if there were concerns; continual foetal heart monitoring). Without this monitoring she would be unable to assess how the labour is progressing, if the baby was becoming distressed or if C becomes unwell. She states 'Without appropriate clinical interventions the risk to mother and baby during a natural vaginal delivery are high and this is exacerbated by C's current presentations and lack of engagement'.
28. She details the procedures involved in an instrumental delivery, including specific positioning of the mother and compliance by her in respect of directions from those charged with her clinical care, which she does not consider C would be able to manage or understand.
29. CO is informed by the anaesthetist that a spinal epidural would not be possible due to C's inability to keep still and the risks of her not keeping still. As the document from the anaesthetist attached to her statement records 'Uncontrolled movement at this point [as the needles are passed into the epidural and/or intrathecal space]…could substantially increase the risks of nerve damage…the commonest complication…is of post dural puncture headache which can be very disabling and require further intervention with needles in the spinal canal. A fall in blood pressure occurs with regional anaesthesia and iv access has to be maintained to give fluids, medicine to help keep blood pressure up, also to give antibiotics and medicine to help the placenta separate. Although once a regional block is established for surgery the patient would not be able to move her legs, she would still be able to pull her drip out, desterilise the operating field, pull her monitoring off etc. She would also be aware of pulling and tugging sensations and potentially feel some level of discomfort that she might find difficult to communicate adequately.'
30. As regards general anaesthetic the document states 'The rationale for choosing an elective c/s under GA for [C] is that it limits the amount of time that she would potentially need physical restraint and anaesthesia can be achieved swiftly and with minimal preoperative precautions…'
31. Finally, CO sets out in her statement the procedures for an induced delivery, which involves maternal observations and the use of progesterone medication in the form of a vaginal pessary which needs to remain in situ for 24 hours. To induce labour further pessaries are often required. CO considers there is a real risk C would remove these. The next stage involves vaginal examination and a drip. As CO observes for this procedure 'There is heavy reliance on sustained cooperation throughout this entire process and in her current presentation I do not feel C would be able to tolerate or comply with the monitoring medications or duration of such a process and this may cause further agitation and anxiety.'
32. She concludes 'There are too many variables to be able to take events as they turn and await the natural commencement of labour without any form of pre-planning'.
33. In her statement she sets out the two pathways she considers are open for C: either to attempt vaginal delivery and emergency caesarean section as a contingency or a planned elective caesarean. In her opinion the first pathway is not advisable as the emergency procedure, if required, is time critical. The guidance requires the decision to intervene by way of so-called 'category 1 caesarean section' is 30 minutes which is the time from deciding the caesarean is required to the time of baby's birth. She considers due to C's likely behaviour there would be a major risk of being unable to perform this procedure within the required time frame, in order to reduce the risk of hypoxia to the baby and the long term consequences of that (such as brain damage).
34. The advantages of a planned caesarean section are that it would allow the clinical team to plan the procedure safely and manage the procedure to reduce trauma and anxiety for C. It would be planned in advance, the required fasting period could be managed and the observations would be undertaken. There would be opportunities to discuss, inform and involve C which 'may or may not be successful in gaining her compliance with the aim of minimising any increase in anxiety or agitation which may occur…'.
35. In her oral evidence she was taken through each of the delivery options and the risks involved. Her evidence remained as set out in her statement, that having weighed up all the risks in the light of C's current mental state it is likely that delivery by caesarean section under general anaesthetic was the only method that was safe for C and the unborn child. She was clear about the need to continually review the options with the obstetric and psychiatric team who had care of C, in consultation with Ms X and Mr A.
36. MW, her midwife, filed a statement and gave oral evidence. She described the history of her involvement with C, she has seen her on about eight occasions. Her evidence accords with that of CO and CP regarding C's recent behaviour including lack of insight, inability to concentrate and unpredictable behaviour. At a recent appointment with C, MW reports that C did not appear to recognise her even though they had met a number of times beforehand.

Capacity

37. CP has been responsible for her care since 19 February.
38. In his detailed written statement and oral evidence CP confirmed that C is still acutely unwell, she has no insight into her mental state and continues to state that she is not unwell and does not require treatment. He described her limited tolerance for discussions about her care, the monitoring and delivery of her baby, and her inability to concentrate or engage with any one topic for very long; she can only tolerate this for short periods of up to 15 minutes before she requires a break. In his opinion due to her not being able to concentrate for any period of time CP considers this prevents her understanding the whole of what is being explained. This combined with her inability to retain information, is what drives CP to his conclusion that she lacks capacity to decide on her obstetric care.
39. The specialist registrar ('SR') when completing his capacity assessment on 24 February confirmed he was unable to engage C in detailed conversations about plans for the delivery of her baby and considered she was unable to use or weigh the information in the balance to reach a reasoned decision. Her preoccupation with other matters and her level of distraction prevented her from comprehending the information or using it.

C's wishes and feelings

40. Her wishes are to have a natural delivery at X hospital. At an earlier stage in her pregnancy, prior to the deterioration in her mental state, she had wanted a water birth. The medical evidence now is clear a water birth would not be an option, due to the need to constantly monitor the foetal heartbeat.
41. When C was visited by a solicitor acting on behalf of the OS shortly before the hearing she stated she wished to have a natural birth in accordance with the birth plan made about three months previously. She wished for minimal intervention, unless there was an emergency when she would have an emergency caesarean, if she had to. If she was to have a caesarean section she would like to stay awake, would like the baby given to her immediately for as much skin to skin contact as possible and for her birth partner to be with her.

Proposed treatment and care plan

42. Both CO and CP agree that C is unlikely to be able to tolerate a normal vaginal delivery, which is likely to require several hours of monitoring and physical examination. For C labour is likely to be a very traumatic experience, her reaction could be extreme, including physical resistance that could pose a significant risk to her, her baby and the staff caring for her. Due to the medication she is on continuous tracing of the baby's heart beat is required, only a few days ago she could barely tolerate less that 20 minutes of that monitoring before she got up and wanted to leave the room.
43. Although they recognise that a caesarean section would also be difficult for C to cope with they both consider it would be less onerous than a vaginal delivery and would be less distressing for C. Therefore their respective views are that C should undergo a caesarean section under general anaesthetic, preferably on a planned basis before she goes into labour.
44. The care plan provides for there to be a joint obstetric and psychiatric review in the next few days to consider then whether, in light of C's mental state, a planned caesarean section is appropriate. Unless her mental state were to have improved sufficiently for her to have regained capacity to make decisions about her care and to be able to tolerate and cooperate with the process of a vaginal delivery, the obstetric team will plan for a caesarean section in the following days.
45. The care plan for C's care was revised during the hearing with the input of the OS on behalf of C with the result that by the end of the hearing it was an agreed document as between the applicants and the OS.

Legal Framework

46. There is no dispute between the parties as to the relevant legal framework within which the court should consider its decision.
47. Section 1 of the MCA sets out the presumption of capacity and provides that:

"(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."

48. Section 2 provides that:

"(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."

49. Section 3 MCA sets out the statutory test of capacity which provides that:

"(1) ... 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)."

50. I have been referred to both (1) NHS Trust (2) NHS Trust v FG (By Her Litigation Friend, the Official Solicitor) [2015] 1 WLR 1984, Keehan J and (1) The Mental Health Trust (2) The Acute Trust & (3) The Council v DD (By her Litigation Friend, the Official Solicitor) [2014] EWCOP 11 Cobb J. In FG (ibid) Keehan J issued guidelines for applications to the court in obstetric cases, which includes guidance on the categories of cases in which applications to the court should be made and the precise procedure to be followed in such cases. In DD (ibid) Cobb J set out the court's approach when considering best interests at para 90, and at para 121 how the court factors into these cases the wishes and feelings on the mode of delivery to the court's decision.
51. Turning to the application for a RRO Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms are engaged.

Article 8
Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 10
Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.

52. Section 12 (4) of the Human Rights Act 1998 provides that:

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published, [and] (b) any relevant privacy code.

53. The leading case on the approach to be adopted when a court is invited to make a RRO is the decision of the House of Lords in Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593. It was held that an intense focus on the comparative importance of competing rights under Articles 8 and 10 was required. Neither Article has presumptive weight over the other; the proportionality test must be applied to each.

Discussion

Declarations:

54. Both SR and CP conclude that C lacks capacity to conduct the proceedings and to make decisions about her obstetric care, including whether to undergo a caesarean section.
55. The factors that have driven them to that conclusion are

(1) C has no insight into her current condition or her need for treatment.

(2) Her manic symptoms mean she is unable to concentrate for sufficient periods of time to receive all the information relevant to the decisions to be made.

(3) If she went into labour the position would be dynamic and require decisions to be made in an ever changing situation, possibly at short notice.

(4) Her symptoms prevent her being able to manage these situations as she has limited understanding, limited retention and lacks the ability to weigh the information she has received or use it to make the relevant decisions.

56. The care plan provides for a structured approach regarding the management of the delivery of the baby with her mental state being kept under regular review. The review planned in the next few days will further consider and re-assess the position.
57. Although it is recognised there has been some modest improvement in C's mental health and co-operation (such as tolerating foetal heart monitoring for a short period) the plan, subject to the review, is to proceed to a planned caesarean section under general anaesthetic in advance of her due date.
58. I agree that C's best interests require the declarations sought to be granted for the following reasons:

(1) Whilst recognising consideration should always be given to the least interventionist approach (as required by section 1(6) MCA) for the reasons set out in detail in the written and oral evidence from the CO any other mode of delivery is more likely to harm and risk the safety of C, the unborn baby and those conducting the delivery.

(2) C's mental state and behaviour means that she would be unable to withstand the demands of a vaginal birth or a caesarean section under local anaesthetic. Even with some improvement in her mental health she has not been able to manage more than around 20 minutes of the foetal heart monitoring (which had to be brought to an abrupt end); the CO's view is that this monitoring is required throughout the birth, not just for time limited periods that C could withstand.

(3) C's wishes and feelings are to have a natural birth but she demonstrates limited or no insight into what that will involve, including the need for her to keep still at times and tolerate constant monitoring of the foetal heart and vaginal examinations (which she has not permitted to date).

(4) A caesarean section under local anaesthetic requires the individual to be able to remain still to enable the local anaesthetic to be administered to the spine, which the CO considers C would not be able to manage without risk to her own safety.

(5) Whilst both Ms X and Mr A would like C to deliver the baby in accordance with her wishes they both, to their credit, recognise the difficulties that would involve and do not wish anything that would put C and her unborn child at risk.

(6) The unanimous view of those with clinical responsibility for C is that, subject to the imminent review the delivery should be by way of caesarean section under general anaesthetic.

(7) The OS was right to explore during the hearing whether there were less restrictive/interventionist options which could be pursued without significant risks to C or the unborn baby but the evidence demonstrated that, whilst the position would be kept under review, at the present time that was not possible due to C's mental state.

(8) In reaching the decision the CO and CP had taken into account the likely impact on C of the various modes of delivery and recognised and weighed in the balance the risks involved in a caesarean section under general anaesthetic.

59. As those who gave evidence recognised this type of application in these circumstances is unusual. I am satisfied that all other modes of delivery have been carefully considered, and will remain under active consideration, but those with responsibility for C's care in the circumstances she is in require this court's authorisation to carry out the procedures those with clinical responsibility on the ground consider best meet C's interests. The care plan now before the court meets C's best interests and the declarations sought will be granted.

RRO:

60. The court is mindful of the balance that needs to be struck between the competing Art 8 and 10 rights as set out in Re S (ibid).
61. As set out above, the initial application was on notice to the press. Mr Farmer, from the Press Association, attended the hearing on 29 February. He did not actively object to the order sought (which anonymised C, the applicants and the individuals involved in her care). He recognised in the circumstances of this case, where C was probably the only person detained in a mental health unit in that region in the advanced stages of pregnancy, if the applicants or clinicians were identified that could readily lead to C's identification, which would further risk her mental health.
62. In the light of the oral evidence from CP during the hearing on 1 March, it was clear that there was a real likelihood that even anonymised reporting of the proceedings would seriously risk C realising the application was about her, with the consequent risk of that causing further deterioration in her mental health in circumstances where the birth of her child was imminent.
63. In my judgment at the conclusion of the hearing on 1 March it was clear the balance came down in favour of the court making an order that prevented any reporting of this application until after the birth of the child. By which time the court will be in a position to have updated assessments as to C's mental health and enable there to be an inter parties hearing to consider any further extension of that order that may be applied for, and the evidential justification for that. It was the only proportionate course to be taken to secure the safety of C and the unborn child. The restriction on the press would be of short duration, a matter of days. In reaching this decision I recognised the press had not been served with the proposed order, but the circumstances were exceptional, needed to be dealt with urgently and the court had the benefit of the representations from Mr Farmer, who did not object to the order being made providing it was time limited.
64. I therefore made a revised RRO preventing any reporting of this application for a period of 14 days.

Postscript

65. C gave birth to a child subsequently.