Capacity, pregnancy, risk and the courts

A NHS Foundation Trust v An Expectant Mother [2021] EWCOP 33 has attracted considerable discussion.  The case concerned an expectant woman aged 21 with what was described as severe agoraphobia.  She had only left her house on a handful of occasions in the preceding four or five years, each time experiencing overwhelming sensations of anxiety, shortness of breath, dizziness and palpitations.   She was pregnant and, in circumstances that are not set out in detail in relatively short judgment, the medical teams responsible for her (it appears from the fact that there are two Trusts named in the title that one must have included a mental health team) considered that (1) the risks to her and her baby were too high if a home birth did not go to plan; and (2) she would not agree to leave her home to go to hospital in the event that a transfer was required during labour.  The Trusts therefore applied to court for endorsement of a plan which would see the mother transferred to hospital before she went into labour.

As to the timing of the application, Holman J referred himself to the decision of MacDonald J in East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18, which had been brought on an emergency basis whilst the woman (again, suffering from agoraphobia) was undergoing an obstructed labour, granted late at night, and where the woman had, in fact, given birth at home before the arrangements endorsed could be implemented.  Holman J noted that:

15. It is, of course, possible to draw conflicting messages from that case and judgment. It could be said to illustrate that, even when doctors consider that there is an acute emergency, it may yet pass and the birth may take place at home without (apparently) long-term damage. It could be said to illustrate the capacity in some situations for a hospital to obtain an urgent hearing and an order, even in the middle of the night, when an emergency has actually arisen. But the hearing will have taken time to set up, and itself lasted nearly two hours, far too long if there had been what Professor Walker described as “a blue light ambulance emergency”.

16. Overall, the case illustrates, in my view, the need to anticipate problems of this kind and to face up to them as best one can in advance, even if that involves speculation and/or reliance upon statistics. In my view, therefore, it was entirely justifiable and appropriate that the hospital trusts in the present case have made the present application. Amongst other advantages, it has enabled a thorough and informed investigation to take place, as well as a fair and transparent hearing, lasting many hours, in which to test out the issues and the evidence, all of which is impossible in any kind of emergency out-of-hours situation. Further, the mother herself has been able to participate, and has participated, throughout the hearing, at a time when she is not in labour, pain or distress.

As to the woman’s capacity, the evidence before the court, including that of an independent expert psychiatrist, Dr Glover, was that the mother’s agoraphobia was:

7.  […] so overwhelming that it exerts a significant effect on her ability to weigh matters in the balance if the activity in point entails her leaving her home. Further, in the opinion of Dr Glover, the mother has short-term memory problems which limit her capacity to manage and process complex, multifaceted information.

8. For these reasons, Dr Glover and the consultant perinatal psychiatrist for the applicant trusts both agree, as do I, that the mother lacks capacity to make decisions about whether her baby should be born at home or in hospital. Put simply, she is so overwhelmed by her agoraphobia that she is unable to weigh and process relevant considerations and unable to make any sort of decision about it. I am, accordingly, quite satisfied – and the Official Solicitor on her behalf now agrees – that the mother lacks capacity to make decisions about the location of the delivery of her baby, and also lacks litigation capacity in relation to that issue, and I will so declare.

This therefore meant that Holman J was required to consider what was in the mother’s best interests.   He made clear (at paragraph 11) that he did not consider that the case was about the advantages or disadvantages of hospital birth or home birth, or vice-versa, “upon which capacitous women may have different views and about which a capacitous expectant mother normally has autonomous and complete freedom of choice.”  However, he noted that the choice was normally made in the knowledge that if, during a home birth, a medical emergency arises which may imperil the wellbeing or even the life of the mother or the baby, the mother can be fairly rapidly transferred to a hospital if required. As he noted at paragraph 11:

The nub of this case is the potential difficulty of transferring this particular mother to hospital if a medical emergency arose, but she was so overcome by her agoraphobia that she would not go. That, of course, could potentially occur at any time of day or night, or during a weekend, when far fewer resources might be available than if the mother is taken to hospital, not in labour, in a planned way so as to give birth there.

The evidence before the court (limited somewhat by the fact that the mother had not attended hospital for scans, as a result of her agoraphobia) was that were no specific indicators that the mother would not have an uneventful spontaneous labour and vaginal delivery.   Holman J, however, identified that:

13. […] although child birth is the most natural of human events, it is not risk free. There are statistics which indicate that, in about 45 per cent of cases in which a young, healthy, primigravida mother embarks on a home birth, she will be transferred to hospital before the birth occurs. Of that 45 per cent, about one quarter are for urgent medical emergencies. The remainder are for important but less urgent reasons, such as a failure to progress, pain relief, or repairing tears. On that basis, about 10 per cent of all such home births require an urgent transfer to hospital for serious medical emergencies, threatening the mother and/or the baby. Professor James Walker, the consultant obstetrician instructed as an expert witness by the Official Solicitor, considered that what he called “urgent blue light ambulance transfers” occur during about one to two per cent of home births.

14. There is an overall statistic that about one in 200 hospital births tragically result in a still-born or otherwise seriously damaged baby. In cases which start as home births, that figure doubles to about one in 100. The difference between the two figures is largely, if not wholly, attributable to delays in effecting a transfer from the home to the hospital.

In the circumstances, and whilst “the medical witnesses do not in any way predict that there will be any emergency; […] on the basis of those known statistics, they must, appropriately and responsibly, anticipate the possibility that there may be.”

How, then, to respond to this risk?   The doctors agreed, and, on the woman’s behalf, the Official Solicitor agreed – an agreement endorsed by Holman J – that it was: “preferable, and in the overall best interests of this particular mother and her baby, that she should give birth in hospital in a planned way around the [estimated due date], but before she goes into spontaneous labour” (paragraph 21).  Having started with the medical position, Holman J also factored in the views of the woman, her partner, and her own mother:

  • The woman, who participated by video, was clear that she would prefer to give birth at home, on the basis of her agoraphobia and fear of going out. Later in the judgment (at paragraph 30), Holman J identified that there was a “known, if small, risk that, if a pre-planned birth cannot be achieved, some acute emergency may (I stress, may) arise in the home from which the mother cannot be rescued before some catastrophe occurs to either her or her baby. The risk may be low, but that which is at risk could not be potentially more grave. The mother is very, very clear that she does not want that to happen;”
  • The woman’s partner and her mother – whose views fell to be considered by reference to s.4(7) MCA 2005, also were identified as preferring a hospital birth if it could be achieved.

It was also agreed that it would be in the best interests of the woman that sedation could be administered to her “so as to calm her and help her cope with the transfer.” That could be administered orally or by intramuscular injection.  Holman J noted that “[s]he does not like needles, but she accepts the need for injections and is not, as such, resistant to them. Indeed, moments before I commenced this judgment, she told me that the visiting midwife had just taken blood samples from her with no problem.”

It is important to note that no one sought to persuade Holman J (and he did not find) that the mother lacked capacity to make the decision whether to give birth vaginally at the hospital (after being induced) or by  Caesarean section:

23.  […] The mother does have the capacity to make an informed choice between those methods, and unless there is a significant medical contraindication, the hospital will respect and be guided by her choice on the day. Similarly, if she elects a Caesarean section, she has the capacity to make an informed choice between a local or a general anaesthetic. Currently, she has clearly said that, if she is to have a Caesarean, she would prefer a general anaesthetic and to wake up when it is all over. But, of course, she has the right and capacity to change her mind about that until the last moment.

The one area of disagreement between the representatives was as to the extent of additional force or restraint which could lawfully be used on a pre-planned transfer and admission, if ER was not actually in labour and no actual acute medical emergency has actually arisen.  The Trusts sought provision for the use of (the minimum necessary) reasonable force.  As Holman J noted, in an emergency, “[i] the Official Solicitor has, herself, agreed and accepted that force and restraint could, if it became necessary, be used. But she submits that, short of an actual current emergency, it is not justifiable or proportionate to use force or restraint for a pre-planned admission, however desirable such an admission might otherwise be” (paragraph 26).

The medical witnesses made clear that this was a finely-balanced decision:

28. […] Both psychiatrists have agreed that, if force is used, that may (this again is speculative) have a damaging psychological effect on this already agoraphobic person. It may entrench her agoraphobia. It may damage or impair her bonding with her baby. It may give her long-term flashbacks. It may compromise her attitude to future pregnancies, or her dealings with persons in authority. On behalf of the Official Solicitor, Ms Sophia Roper submits that these are known risks from the use of force or restraint which outweigh the more speculative and statistical risks, if the mother goes into labour at home but may then require an urgent transfer to hospital.

Having outlined what the Trusts proposed, Holman J considered that this was:

30. […] an unattractive scenario and, on the face of it, if resorted to, a severe infringement of the mother’s personal autonomy and liberty. But, on the other side of the balance here, there is the known, if small, risk that, if a pre-planned birth cannot be achieved, some acute emergency may (I stress, may) arise in the home from which the mother cannot be rescued before some catastrophe occurs to either her or her baby. The risk may be low, but that which is at risk could not be potentially more grave. The mother is very, very clear that she does not want that to happen.

31. Having very anxiously weighed and considered all the factors in this case, I am, on balance, satisfied, albeit in disagreement with the Official Solicitor, that it will be in the overall best interests of this mother if – if the necessity for it arises on the day – some trained and professional force and restraint are used to transport her to hospital, and I will so declare. The declaration will incorporate the final “care plan for delivery” of the baby, which has been amended by me and counsel during the course of the hearing. An official transcript will be made as soon as possible of this judgment, and an anonymised version of the care plan and the order will be annexed to it.

In a postscript, Holman J recorded that:

The judge was later informed that on 22 May 2021 the mother went into spontaneous labour at home. She contacted the hospital and travelled there with the support of her partner and mother and the community midwife. While still at home, she received 2mg of Lorazepam orally. Although initially resistant, she was guided by staff and her family into the ambulance and no restraint was required or used. A few hours later she was safely delivered of a healthy baby boy with a good birth weight. She returned home with the baby within the next day or two.


This case has provoked strong reactions, which have been meticulously documented by the Open Justice Court of Protection project, which has also commented critically on the fact that Holman J held the hearing in public, but did not permit members of the public to attend remotely.  It should perhaps be noted that this is likely to be an issue which is going to be encountered more frequently as the courts potentially move back to a world where at least some hearings are held in public in physical court rooms where no-one attends remotely (there are, of course, a whole host of – sometimes finely balanced – issues about whether remote or in-person hearings are, substantively, better for the delivery of justice for the actual parties concerned).  At that point, real questions are going to arise as whether remote access for members of the public – in effect broadcasting – is or should be required.    These are definitely questions for another day, but they are going to be need to be answered in due course.

Turning to the substance of the decision, it is not obvious from the face of the judgment why a contingency plan could not have been prepared which provided for the home birth to proceed with (in effect) a medical team on standby at the home to intervene and take the woman to hospital in ‘blue light’ conditions, armed with whatever legal authority they considered necessary to do so even if her agoraphobia meant that she sought to resist: it may have been that the relevant professionals considered that this was too risky (in which case it would have been useful for this to be spelled out in the judgment).  Alternatively, and this is perhaps alluded to at paragraph 11 in the part quoted above, it may have been that within a stretched NHS service such was sufficiently resource intensive that it simply was not an option; again, having this spelled out in the judgment would have made clear the parameters within which the court was being asked to make a decision.

More broadly, however, much of the focus of the discussion has through a characterisation of a position as being (in essence) excess risk aversion of the medical professionals involved, leading to a situation where, to pre-empt a small but very serious risk, entirely disproportionate steps were sought, agreed (in part) by the very person appointed to act as her representative, and endorsed by the court. It seems to me that each of these criticisms raise entirely legitimate points for consideration and discussion. However, it also seems to me that they need to be placed in their context by reference to some points which may otherwise risk getting lost.

The first is to note that the woman’s voice – ironically – seems to have been lost in some of the debates.  For myself, I would dearly love to be able to find out from her now about (1) why she contacted the hospital herself, as the postscript described her as having done; and (2) how she felt both about the process and the outcome, in circumstances where one construction of the evidence is (from a CRPD perspective) her overriding will was to be delivered of her baby safely, with all other considerations being secondary.   I would not, though, purport to speak for her.

The second is that the vast majority of birth-planning decisions relating to those with mental health conditions[1] are undertaken in collaboration with the woman, outside the court arena.  That work almost invariably includes detailed and careful advance care planning (for a specific tool for use in the context of bipolar disorder, which can be adapted to address birth plans, see the PACT approach).

The third is that this case may raise legitimate questions about the risk analysis undertaken by the two Trusts involved in the context of their planning (involving, it would appear from the judgment, not just doctors, but also her community midwife and community psychiatric nurse).  However, it seems to me, again, by way of context, that approaches to risk on the behalf of medical professionals are dictated in part by anticipation of societal/regulatory responses in the event of a statistically low probability but substantively very serious event coming to pass.

The fourth is that there will be some circumstances in which the interventions considered necessary to secure against the risks that have been assessed go beyond those which can be catered for under the provisions of ss.5-6 MCA 2005.  At that point, it is clear that Trusts should consider approaching the court for endorsement of the plan: see, in this regard, the Serious Medical Treatment Guidance issued by Hayden J in January 2020.   At one level, some of the criticisms of the judgment could be read as a challenge to the idea that Trusts should contingency plan, and seek the endorsement of the court for a contingency plan.   To the extent that they do, it seems to me that those criticisms are misplaced, if the alternative is to leave things to unfold and then seek authority only if then required.   That does not mean that, if the contingency plan is put before the court, it should not be rigorously stress-tested, but such stress-testing can in practice only take place if there is time to do so.    There is, of course, a separate – but important – question about the role that the litigation friend should take in such stress-testing if the woman is found (as here) to lack capacity to conduct the proceedings, and hence to require a litigation friend.

The fifth is that, if the Trust(s) do come to court, we should perhaps be more open about the fact that it is, in reality, impossible for a judge not to take into account the potential that they might endorse a plan which could lead to the death of a viable baby.   Perhaps some of the discomfort expressed in relation to this case reflects the fact that Holman J was not allowed as a matter of English law to hold that the foetus had its own independent legal rights.   I am aware that strong feelings exist in relation to the rights of the foetus, so I make this point with all due caution.  However, I note that, had English law allowed Holman J directly to take those rights into account, he could have conducted an express balancing exercise of those rights against (if, in reality, they were against – I do not seek to give voice to the woman here) her rights.  Because he could not then, in line with all other judges who have been in a similar position, he had to take them into account through an analysis of the mother’s best interests which took into account her desire to be delivered safely of her baby.  There are undoubtedly cases – although not necessarily this one – in which that analysis comes uncomfortably close to a misleading legal fiction, which hides rather than exposes the real issues.

[1] Whatever the position might be about agoraphobia generally, it appears clear from the judgment that in this case, the woman’s agoraphobia was sufficiently serious that she was under the care of a mental health Trust.

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