In two decisions which came out simultaneously, the Court of Protection had to consider how to approach obstetric decisions, in both a planned (albeit relatively compressed) fashion and an unplanned emergency.
In X NHS Foundation Trust & Anor v Ms A  EWCOP 17, Cohen J was concerned with Ms A, a woman in her 30s, who was 38 weeks pregnant, and who suffered from paranoid schizophrenia. She had been in hospital on at least 5 occasions in 2007, 2011, on two occasions in 2015 and now. The admissions in 2007 and 2011 were respectively after the birth of her two children. It appeared that those admissions might have been after she ceased taking medication. There have been other referrals to mental health services not requiring hospitalisation. In September 2019, Ms Ms A stopped taking medication as she was well and wanted to try for another child. Various concerns about her mental health and functioning were raised in 2020, particularly in the last few months of the year. In early 2021, at her appointment with Dr B, her consultant obstetrician, she formed the view that Ms A lacked capacity with regard to her mental health care and treatment as she was demonstrating no insight into her previous illness. Ms A stated then , that she was hoping for a normal vaginal birth at home.
In early 2021, Ms A’s mental health deteriorated, and she was detained, first under s.2 and then s.3 MHA 1983. Simultaneously, it became clear that her baby was breech, which, if not corrected, meant that the risks in a vaginal delivery were significantly greater, and potentially fatal. Attempts to undertake a procedure to turn the baby were stymied, in part by Ms A’s anxieties which initially led her to decline it. The choice was therefore between a vaginal breech birth or a planned caesarean section.
The Trusts responsible for Ms A’s physical and mental health applied to the court for declarations and decisions about her birth arrangements. The solicitor instructed by the Official Solicitor as Ms A’s litigation friend saw Ms A. Ms A said she would not be happy and would want to have it under any circumstances, the material part of the note being set out at paragraph 12 as follows:
When asked what she would say if there were signs of distress during labour from the baby, and the medical team said that they needed to move to an emergency caesarean section, Ms A said she didn’t like thinking of the worst scenario, and didn’t like to say anything about that. Her position was summarised helpfully in the Official Solicitor’s agent’s note in these terms:
i) You don’t agree that you are unwell;
ii) You think you do have capacity to decide yourself how to give birth;
iii) It is important to have a vaginal birth;
iv) You don’t feel like you have been listened to;
v) You don’t feel like everything has been done to exhaust the option of a vaginal birth;
vi) You think that, for you, the cons of a C-section outweigh the pros.
On the evidence before him, Cohen J was in no doubt that Ms A: (a) lacked capacity to conduct the proceedings and make decisions regarding her obstetric care and treatment and (b) that she was not able to retain and weigh up the information, including the risk that the course of action that she wished presented both to herself and the foetus, and also the increased risks engaged by an emergency caesarean section rather than a planned caesarean section.
As regards her wishes, Cohen J identified (at paragraph 18) that:
There is no doubt that in her more rational moments, Ms A wants the best for her child. It is why she came off medication in 2019. At a different point of her interview with the Official Solicitor’s agent she says that “I would just like us to be healthy and well and return home safely”. She stated that the single most important thing to her is “for me and baby to be healthy, well and safe”. And indeed, it was in this sense, her being able to put the fetus first, that she presented until her relapse at the end of 2020. I am in no doubt that if she regained capacity, that it would be her wish to have a safe delivery of her child.
Cohen J made clear that he considered that Ms A’s expressed views were of great significance. However, at paragraph 22, he made clear that he was “in no doubt that the views expressed by Ms A are not in her best interests, and it is the test of her best interests which I must apply.”
Cohen J therefore endorsed the plan for transfer, including by restraint if required, to the maternity unit at the physical health hospital to undergo the planned caesarean section (although he also authorised an emergency one in the event that Ms A went into labour before the date for the planned procedure).
In East Lancashire Hospitals NHS Trust v GH  EWCOP 18, McDonald J was concerned with an evolving emergency – an application made in the case of GH, a 26 year old woman who suffered from anxiety, depression and acute agoraphobia and who had gone into labour at home nearly 72 hours earlier but who had thereafter suffered an obstructed labour. Within this context, it became apparent that GH required urgent in-patient obstetric treatment and a possible emergency caesarean section. GH was, however, refusing to agree to that course of action. An urgent application was made, the hearing starting at 22:00. The Official Solicitor, herself, acted as GH’s litigation friend, under her (relatively new) out of hours scheme, and McDonald J was at pains to express his gratitude to her for testing the evidence of the Trust by way of cross-examination and making, by way of closing submissions, a considered recommendation to the court regarding GH’s best interests.
McDonald J identified at the outset of his judgment that:
As Mr Wenban-Smith fairly acknowledged in his opening, in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor)  EWCOP 30 Keehan J made clear the heavy burden on Trusts to engage in early and thorough planning in cases of this nature in order to prevent the need for urgent applications to the out of hours judge. However, I accept Mr Wenban-Smith’s submission that this case is distinguished by the fact that up until late yesterday afternoon GH was assessed to have capacity with respect to decisions concerning the management of her pregnancy and birth and indeed had agreed to admission to hospital in the event that admission was required during the course of her labour. It was only during the latter part of the day yesterday that it became clear that GH’s anxiety and agoraphobia had become the dominant feature in her decision making and that a subsequent capacity assessment revealed that she lacked capacity to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. Within this context, and as the Official Solicitor pointed out, there were options that might have been considered in order to endeavour to avoid the need for an urgent hearing following that assessment, I was satisfied that this case met the criteria for the urgent out of hours service. I make clear however, that nothing said in this judgment should detract from what should be the ordinary approach in cases of this nature as set out by Keehan J in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor).
In his judgment, given after the event (having indicated his decision at the end of the out of hours hearing), McDonald J was clear that GH’s:
30. […] GH’s current agoraphobia and anxiety is preventing her from using or weighing information in deciding whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section.
31. Despite clearly and carefully presented information that unless she is now admitted to hospital both her and her baby are at increasing risk of serious injury or even death, GH has chosen, without acknowledging and considering the reality of those risks, to stay in what she considers her “safe space”, which she considers will allow her to give birth in a manner safe for both herself and her unborn child. Within this context, this is not a case in which GH has acknowledged the risk of serious injury or death, weighed that risk and then rejected that risk it in favour of an unwise course of action but rather a case in which GH simply does not acknowledge the risk of serious injury or death or accept that the risk of serious injury or death is relevant to her as long as she remains in her “safe space”. I am satisfied that this demonstrates that GH’s agoraphobia and anxiety has overwhelmed her ability to use and weigh the information required to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. Within this context, I am further satisfied GH’s inability to use and weight information is clearly the result of an impairment of, or a disturbance in the functioning of, GH’s mind or brain.
32. I am also satisfied that in her current circumstances there is no evidence before the court that GH is likely to regain capacity to make the decision regarding admission to hospital before it becomes necessary for her safety and the safety of her unborn child for that admission to take place.
McDonald J held that it was in GH’s best interests to be conveyed from her home to hospital by ambulance, with use of reasonable force if necessary, and for the medical and midwifery practitioners attending GH to carry out such treatment as may in their opinion be necessary for the management of GH’s pregnancy and delivery, as outlined in the Obstetric Management Plan. In this, he gave:
32[…] significant weight to the fact that, at a time when all involved accept that GH had capacity, she had indicated that whilst she wished for a home birth, she agreed to be admitted to hospital should that be required. I am satisfied that this is cogent evidence regarding her wishes and feelings at a time when she had capacity with respect to the decision in issue. Further, I have also weighed in the balance in assessing GH’s best interests the fact that she was clearly looking forward to the birth of the child and wished for the birth to go smoothly and safely. If GH had retained capacity with respect to the decision in issue, I am satisfied that it is likely she would have remained in agreement with being admitted to hospital should that admission have become necessary during the course of her labour, which it now has.
He noted the risks attendant on admission to hospital, particular in circumstances where one of the options contemplated is a caesarean section under a general anaesthetic. A caesarean section carries with it the risks associated with a general anaesthetic and an increased risk of bleeding. As he observed, “[t]he transportation of GH to hospital will also inevitably increase her levels of anxiety at a time when her body is already stressed by her pregnancy and obstructed labour, particularly if it is necessary to use reasonable force to facilitate the transfer” (paragraph 35). Those risks were, however, outweighed by the risks to GH (and to the health of her unborn baby) by a home birth in her particular circumstances.
McDonald J sought to consider the position from GH’s point of view:
38. […] In this regard, I am once again assisted by fact of GH’s consent to admission when she had capacity to consent to that course and before she was overborne by her agoraphobia and anxiety. As I have stated, for the reasons I have given I am satisfied that this would remain her position if she had capacity in light of the fact this this view was taken by her as recently as a few days ago. I am further satisfied that GH would also take counsel of relatives and family who seek for her to go to hospital and would likely place weight on that counsel, particularly in circumstances where it is plain that GH was desirous of a safe birth for her second child. Within this context, I have of course also borne in mind that, having heard the evidence in this case, the considered recommendation of the Official Solicitor, as litigation friend for GH, that it is in GH’s best interests now to be admitted to hospital for obstetric and postnatal care.
The order was therefore made. McDonald J noted that,
40. […] it is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo. It is a graver step still compel, possibly by means of the use of sedation and reasonable force if further gentle persuasion fails, the removal of a person from their home to ensure their attendance at hospital for such medical treatment. Parliament has conferred upon the court jurisdiction to make a declaration of such gravity only where it is satisfied that the patient lacks the capacity to decide whether to undergo the treatment in question and where it is satisfied that such treatment is in that patient’s best interests.
41. In this case I am satisfied that the Trust has discharged the heavy burden resting upon it in demonstrating that GH lacks capacity to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section and that the course of action proposed by the Trust is in GH’s best interests. Within this context, I make the order in the terms appended to this judgment.
In light of the foregoing, it may come as a (happy) surprise to discover the postscript to the judgment that:
43. Ahead of this judgment being formally handed down, the court was informed that GH had given birth to a healthy baby boy. In the event, following the out of hours hearing and the decision of the court, GH’s labour began to progress quickly and she delivered her son at home before it was possible to execute the arrangements authorised by the court regarding her transport to hospital for obstetric and postnatal treatment.
Cases concerning birth arrangements are always – and rightly – ones which cause concern, both to the courts, and to practitioners. In both of these cases, it is striking the extent to which the court founded themselves on what they understood to be evidence that the woman in question in fact would have wished to have been delivered safely of their baby, even if the means now being proposed were ones that they were objecting to. Their will, in other words, was being prioritised over their preferences. These cases are a crucial reminder of the importance in this setting (above almost all others) of ensuring that proper steps are taken by way of advance care planning to ensure the recording of the evidence required to determine that will.
GH’s case is also a reminder of how quickly the Court of Protection can be summoned to help where required (and also of the importance of the fact that the Official Solicitor is now able to offer an out of hours service so as to ensure that the person in question is represented). As McDonald J reminded us, the power to go out of hours should only be used as a last resort, especially in circumstances where contingency planning is possible. But it is very important that it is there. The decision is also, thankfully, another reminder of the fact that planning for the worst is quite often the best guarantor that the best will in fact occur.