This judgment concerned an urgent application before the Court of Protection. The applicant Trust (Wrightington, Wigan and Lee Teaching Hospitals NHS Foundation Trust) sought a ruling that SM – a 16-year-old young woman – lacked capacity to decide on her care.
SM was a looked-after child within the meaning of s20 of the Children Act 1989 who was at an extremely advanced stage of her pregnancy (39 weeks). Specifically, the Trust sought (1) a declaration from the Court that SM lacked capacity to make decisions about her obstetric care and treatment; (2) the Court’s authority so that they could proceed lawfully with the proposed plan of delivery by Caesarean section, and (3) authorisation to deprive SM of her liberty in order to achieve the safe delivery of the baby.
SM resided in supported living in Wigan, receiving care from a team of carers. She had a history of sexual exploitation and suffered from post-traumatic stress disorder, anxiety, and emotional dysregulation. In addition to being admitted to hospital on numerous occasions, she suffered from visual and auditory hallucinations. However, she declined all anti-psychotic medication.
A Caesarean section was attempted three times prior to the application in the Court of Protection. On all three occasions, SM had been unable to go through with the operation at the last minute because of the anxiety that she felt around the anaesthesia and operation. Her agitation and distress became increasingly worse and, at one point, SM ran from the theatre bed, out the delivery room, and off hospital grounds with her cannula still intact. She was eventually returned to the hospital by Greater Manchester Police, who deployed their powers under section 136 Mental Health Act 1983. On the opinion of medical experts, the risk to the infant was high and the risk to SM would be greater as time went on and her mental health declined. Practically, there were issues with ensuring that relevant staff required for this procedure would be available in the coming hours and days. Thus, the Trust’s desire lay in seeking the court’s approval to proceed with a Caesarean section.
On the evidence, SM’s anxiety, combined with her emotional dysregulation, had disabled her from being able to weigh up or utilise information to make relevant decisions “in the heat of the moment”. Therefore, despite SM being able to understand the point of a Caesarean section and retain the information in relation to the procedure, she could not recall the risks and benefits of the proposed treatment when her health anxieties were heightened and she was deemed to have “fluctuating capacity”. In the opinion of medical experts, it was inevitable that SM would lose her capacity to decide the means of delivery for her baby as soon as obstetric intervention was attempted, as her emotional dysregulation meant that she was likely to become distressed and agitated.
The judge, however, felt that although it was a very real possibility that SM could lose capacity, he could not be satisfied that this was an ‘inevitability’. Thus, the judge attached greater weight to SM’s wishes and to her sense of autonomy than the Trust did. He paid great attention to what Hayden J had said in the case GSTT v SLAM and R [2020] EWCOP 4 when he stressed that the ‘inviolability’ of a woman’s body and her right to take decisions relating to her unborn child was a ‘facet of her fundamental freedom’.
The judge took note of this and the extremely advanced stage of pregnancy, which would increase the chances of stillbirth which, in turn, would have deleterious consequences on SM’s fragile mental health. Overall, it was in SM’s best interests for a healthy baby to be born as soon as possible, given the impact upon her psychological wellbeing that this uncertainty was having. Having regard for the best interests of SM to exercise a high degree of autonomy over the manner in which her baby was born, the judge concluded that it was proportionate in the short- and long-term interests of SM for the hospital to attempt one final vaginal induction of the baby. The judge hoped that this could lead to a successful vaginal delivery of SM’s baby, as she wished for. This was to begin immediately, to ensure that SM had the highest chance of delivering the baby vaginally whilst alert and awake.
The judge also accepted the very real possibility that SM would lose capacity in the ‘heat of the moment’, thus losing her ability to make a capacitous decision in relation to the appropriateness of a Caesarean section. The judge, therefore, concluded that should the situation arise where clinicians felt that SM had lost capacity to make decisions for herself, and felt that the welfare of the mother or child would be compromised without a Caesarean section, then it would be in her best interests for the baby to be delivered by Caesarean section under general anaesthetic; it was considered to be lawful and in the best interests of SM and the baby for the hospital to perform the procedure in those circumstances.
CASCAIDr Comment:
In this instance, the individual had capacity at the time of the hearing but repeatedly lost that capacity when making a decision about a Caesarean section became an ‘immediate reality.’ The judge, Cobb J, in line with Hayden J in similar previous cases that had come before the Court, placed great emphasis on enabling the individual’s autonomy to be exercised with a view to this being in her best interests. This emphasis on autonomy was only to be put aside at the direst of stages where the mother and baby were at risk and it was medically absolutely necessary for her autonomy to be over-ridden.
It is worth noting that SM was vaginally induced following the hearing and she progressed safely to deliver a baby girl on the following day; she was entirely compliant and able to breastfeed under supervision. It was not, in the end, necessary for SM to undergo the Caesarean section as had been desired and this sensitive and nuanced approach to autonomy served to be the right approach in the end.