MR JUSTICE BAKER :
Introduction
- On 16 November 2016, sitting in the Court of Protection, I made an order facilitating the delivery of a baby by
Caesarean
section performed on a 24-year-old woman with a diagnosis of autism and learning disability, hereafter
referred
to as "
CA".
This judgment sets out the
reasons
for my decision.
- On 10 November 2016, less than a fortnight before the estimated date on which
CA
was due to give birth, the NHS Trust
responsible
for the hospital providing her with obstetric
care
applied to this court for a declaration and order that it was lawful and in
CA's
best interests that she should undergo a
Caesarean
section to deliver her baby, if necessary using force in a way that deprived
CA
of her liberty. The
reason
given for the application was that
CA
was
refusing
any interventionist health
care
in
respect
of her pregnancy, objecting to a
Caesarean
section, and stating that she wanted to give birth at home, which the treating clinicians concluded was not in her best interests.
- At the outset, I cite the observations of Cobb J in The Mental Health Trust and Others v DD and Another [2014] EWCOP 11, another
case
in this court concerning an application for declarations and orders facilitating the performance of a
Caesarean
section operation on a woman said to lack mental
capacity.
At paragraph 5 of his judgment, Cobb J made this observation.
"The rulings sought in this
case
challenge the most precious and valued human rights and freedoms. Authorisation for the deprivation of DD's liberty and for the use of
restraint
(even for a short time) is sought, as is permission to intrude, by force if necessary, into the privacy and sanctity of her home. Steps to promote her physical health and well-being, it is argued,
require
a physically invasive medical procedure, to be conducted under general anaesthetic. I am acutely aware of the unusually onerous
responsibility
which falls upon me sitting as a judge of the Court of Protection in determining this application."
The same observations apply to these proceedings. It is therefore extremely concerning that the Trust only started these proceedings less than a fortnight before the baby was due. It should be noted that the application in the DD
case
was made 6 or 7 weeks before the baby was due. The issues arising in the current
case
were not quite as complex as those in the DD
case,
but they involved a number of sensitive and difficult decisions on which
CA,
through her litigation friend the Official Solicitor, had an absolute right to be heard. Because of the shortage of time, the Official Solicitor had very little opportunity to digest and analyse the evidence. As a
result,
there was a significant danger that issues might not have
received
the
care
and attention they deserved. Fortunately, however, I am satisfied that, thanks to the efforts of the Official Solicitor and his
representatives,
all issues have in the event
received
full consideration.
- This extremely unsatisfactory situation has been brought about by the failure of the Trust to start proceedings at an early stage. In this
respect,
the Trust has manifestly failed to comply with the guidance provided by my colleague Keehan J, in the Annex to his decision
reported
as NHS Trust 1 v G: Practice Note [2014] EWCOP 30 as to the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially, lacks
capacity
to litigate and to make decisions about her welfare or medical treatment. That guidance is compulsory
reading
for all professionals involved with such
cases.
Of particular
relevance
is the guidance at paragraph 6 of the Annex:
"The early identification of an individual in
respect
of whom an application might have to be made is essential."
Later, at paragraph 19, the guidance continues:
"Save in a
case
of genuine medical emergency, any application should be made no later than 4 weeks before the expected date of delivery. This timeframe is
required
for the following
reasons:
(i) where P is assessed as lacking
capacity
to litigate, it will enable the Official Solicitor to undertake any necessary investigations; (ii) to ensure the final hearing is listed and heard at least a few days before the proposed interventions; and (iii) to enable a directions hearing to be held around two weeks before the final hearing. The court and the parties will then have the opportunity to ensure the court has all the
relevant
and necessary evidence at the final hearing."
In addition, paragraph 22, Keehan J noted:
"Late applications are to be avoided save in a
case
of genuine medical emergency. They have four very undesirable consequences: (i) the application is more likely to be dealt with by the out-of-hours judge and without a full hearing in public; (ii) the available written evidence is more likely to be incomplete and necessitate substantial oral evidence; (iii) it seriously undermines the role that the Official Solicitor
can
and should probably play in the proceedings; and (iv) it deprives the court of the opportunity to direct that further evidence, including independent expert evidence, if necessary, is obtained in
relation
to the issue of
capacity
or best interests. This approach is dictated by P's article 5, 6 and 8 rights and best interests."
- I hope that those
responsible
for managing the
case
within the Trust will
carry
out a proper investigation as to the
causes
of this delay. Hereafter, all NHS Trusts must ensure that their clinicians, administrators and lawyers are fully aware of, and comply with, the important guidance given by Keehan J in
respect
of applications of this sort.
The hearing
- The hearing took place in open court subject to a
reporting
restriction
order preventing the publication of any information likely to identify
CA
or members of her family.
- The application first
came
before me on 10 November 2016 at a preliminary hearing on the same day that the Trust had filed its application and only hours after the Official Solicitor had agreed to take on the
responsibility
of acting as
CA's
litigation friend. At that hearing, the Trust asked the court to make an immediate order authorising the
carrying
out of a planned
Caesarean
section. Unsurprisingly, the Official Solicitor asked for an adjournment to
carry
out his own assessment. I agreed and listed the matter for a final hearing 4 days later (2 working days later) with a view to affording the Official Solicitor time to obtain a
report
from his agent on an interview with
CA.
I indicated that, in the event that an emergency hearing was acquired over the intervening weekend, I would deal with the application. I gave directions for the filing of further evidence for the hearing on 15th November, including the filing of an attendance note by the Official Solicitor's
representative
following her interview with
CA.
- At the final hearing on 15th November, both the Trust and the Official Solicitor were
represented
by leading counsel, Ms Khalique QC on behalf of the Trust and Ms Gollop QC on behalf of the Official Solicitor.
CA's
parents had been notified of the proceedings and the hearing, and, although they informed the Trust and the Official Solicitor that they supported the Trust's application, they played no direct role in the hearing. It is important to note, however, that they have played a very important part in
caring
for
CA
and will, in all probability, play an equally important role in future as it is the plan of the local authority for the area where
CA
resides
to start proceedings under Part IV of the Children Act 1989 and to place the baby in the
care
of
CA's
parents under a
care
order.
- Written evidence was filed by the Trust from a number of witnesses, four of whom attended to give oral evidence Dr I, consultant psychiatrist; Mr. G, consultant obstetrician; Dr. K, consultant anaesthetist; and DW, midwife. The Official Solicitor duly filed a statement from his
representative
following her interview with
CA.
Counsel filed opening arguments and at the conclusion of the hearing made oral submissions. I am very grateful to all the professionals doctors, medical staff, counsel and their instructing solicitors for their efforts and assistance in helping me make this decision.
- The issues to be determined at the hearing were:
(1) whether EA had the
capacity
to litigate and to make decisions concerning her medical treatment and in particular the management of her pregnancy, and
(2) if not, whether it was in her best interest to undergo a planned
Caesarean
section.
Background
CA
was born in Nigeria in 1992. She has 5 living sisters, all of whom (I understand) are still living at home. The family
came
to the UK in 2007. It is claimed that
CA
has been diagnosed as being on the autistic spectrum, although no medical
records
confirming such a diagnosis were produced in these proceedings.
Relatively
little information is available about
CA's
background but it is known that, as a small child in Nigeria, she experienced one, or possibly two, episodes of cutting. The evidence for the first incident is a series of superficial scars on her abdomen radiating from the umbilicus. On behalf of the Trust, Ms Khalique described these scars as "tribal".
CA's
mother suggested that these marks were inflicted on an occasion when
CA
was unwell, the purpose being to
release
"bad blood". The precise circumstances in which these incisions were inflicted are unclear, but it seems likely that
CA
was conscious at the time and under some form of physical
restraint.
- Secondly,
CA's
mother has
reported
that
CA
underwent genital cutting as a child. It has not been possible to confirm this because (as described below)
CA
has
refused
to permit anyone to
carry
out a genital examination. If she was subjected to female genital mutilation ("FGM"), the type of mutilation is unknown, although it is thought likely to have been "type 1" (partial or total
removal
of the clitoris), as opposed to the more extreme "type 2" (involving, in addition, the
removal
of the labia minora or, in some
cases,
the labia majora), or "type 3" (the narrowing of the vaginal opening by creating a covering seal formed by cutting and
repositioning
the labia).
- The significance of these episodes of cutting is obvious. For a woman who has undergone the traumatic abdominal incision of the sort described in this
case,
the prospect of a
Caesarean
section may well
carry
risks of psychological or other trauma. On the other hand, for a woman who has undergone FGM (of whatever type) there is an increased risk of tearing, blood loss and infection through the process of natural childbirth.
- For her first few years in England,
CA
lived with her family, but in 2014 she moved into a supported living placement, where she was known to social services and
received
20 hours of support each week from Autism
Care.
At the beginning of July 2016, she visited her parents. They suspected she was pregnant and took her to the GP who confirmed that this was indeed the
case.
It was estimated that she was approaching 30 weeks gestation, although subsequent scans
revised
the estimated date of arrival to 23 November 2016. The father of the child
CA
is
carrying
is unknown, as are the precise circumstances in which the baby was conceived. Although the court heard some evidence about
CA's
various accounts of what had happened, it is unnecessary to
refer
to them further in this judgment.
CA
was
referred
to the local hospital where she was assigned to the
care
of Mr G, consultant obstetrician, and his team. The evidence presented by the Trust, and in particular by Mr G and midwife DW, is that
CA
was largely uncooperative with medical examinations and, on occasions, with midwifery staff. She
refused
to provide blood samples, or to undergo gynaecological examinations, or almost any examination of her body. She did, however, agree to undergo ultrasound scans, from which hospital staff were able to glean some information about the baby, including the
revised
estimated date of delivery. Gradually over time, DW has managed to secure, to some extent,
CA's
confidence and trust, and, as a
result,
CA
allowed her to listen to the foetal heartbeat and to palpate her abdomen and test her blood pressure.
- In conversation with DW,
CA
demonstrated little, if any, understanding of what would be involved in labour or childbirth. DW offered her a DVD about the process. Initially,
CA
was
reluctant
to take it, but subsequently she did so and watched it.
CA
seemed to have a very limited understanding of, or interest in, childcare, saying that her mother would deal with it. She was adamant that she wanted to have the baby at home and, when she was shown round the maternity ward and delivery room at the hospital, showed an aversion to the machinery and a mistrust of medical staff, saying "no one
can
touch you at home, I trust no one." In discussion about childbirth, she said simply "they just come out when they'
re
ready
and that's it". According to DW, she had no expectation of possible pain or bleeding. Later, when seen by psychiatrist Dr I, she said she would not experience any pain because her friend had a delivery without suffering any pain. When she eventually watched the DVD, she did not seem inquisitive about the mother's evident pain, and stated that she would definitely not have an epidural injection. DW noticed that she never
relayed
back the information which professionals had told her. Despite forming a good
relationship
with her, DW continued to find
CA
challenging and, on occasions, unpredictable and difficult.
- At the beginning of November,
CA
became more unsettled. Medical staff became concerned about her condition and wanted her to admitted to hospital, but she declined. It seemed that it was at this point that the Trust finally decided to apply to the court.
Capacity
- When addressing questions of
capacity,
the court must apply the following principles as set out in the Mental
Capacity
Act 2005.
(1) A person must be assumed to have
capacity
unless it is established that she lacks
capacity:
s. 1(2). The burden of proof therefore lies on the party asserting that P does not have
capacity.
In this
case,
therefore, the burden of proof lies on the trust to prove that
CA
lacks
capacity.
The standard of proof is the balance of probabilities: s. 2(4).
(2) 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 disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for
capacity
involves two stages. The first stage, sometimes
called
the "diagnostic test", is whether the person has such an impairment or disturbance. The second stage, sometimes known as the "functional test", is whether the impairment or disturbance
renders
the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, 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. Important guidance as to the assessment of
capacity
generally, and the
(3)
Capacity
is both issue-specific and time specific. A person may have
capacity
in
respect
of certain matters but not in
relation
to other matters. Equally, a person may have
capacity
at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks
capacity
in question, in this
case
whether
CA
lacks
capacity
to make decisions concerning the birth of her baby.
(4) A person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that "it is important not to assess someone's understanding before they have been given
relevant
information about a decision" (para 4.16) and that "it is important to assess people when they are in the best state to make the decision, if possible" (para 4.46).
(5) It is not necessary for the person to comprehend every detail of the issue. It is sufficient if she comprehends and weighs the salient details
relevant
to the decision (per Macur J, as she then was, in LBL v RYJ [2010] EWHC 2664 (Fam).
(6) A person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4).
(7) In assessing the question of
capacity,
the court must consider all the
relevant
evidence. The opinion of an independently-instructed expert will usually be of very considerable importance, but, as Charles J observed in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, "it is important to
remember
(i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence
the judge must always
remember
that he or she is the person who makes the final decision".
(8) The court must avoid the "protection imperative" the danger that the court, like all professionals involved with treating and helping
CA,
may feel drawn towards an outcome that is more protective of her and fail to
carry
out an assessment of
capacity
that is detached and objective.
CA
was examined on 14th November (that is to say, the day before the final hearing) by Dr I, a consultant psychiatrist with considerable experience of autism and a special interest in autism in women. Dr I had access to earlier
capacity
assessments (for example, by Mr. G as to whether
CA
had the
capacity
to agree to blood tests) and also to the
case
papers but not, it seems, to
CA's
full medical
records.
In particular, it seems he had no access to any mental health
records.
- Dr I described
CA
as coming across as a vulnerable woman with a learning disability. She told him she did not like anything about the hospital and did not want to be there. She confirmed that she does not like needles, and Dr I concluded this to be consistent with needle phobia. She
reiterated
that she would not allow a midwife to
carry
out an internal examination. She said she wanted a normal delivery and did not anticipate suffering any pain.
- Dr I concluded that
CA
had a learning disability, estimating her IQ to be between 60 and 70. He did not
carry
out any formal IQ testing, basing his clinical assessment on her previous and current level of functioning as demonstrated during her meeting with him, and also on descriptions of her by her mother and medical staff.
- Dr I also concluded that
CA
is autistic. Again, he did not
carry
out a full assessment using standardised instruments. He is, however, extremely experienced in diagnosing autism and concluded that
CA's
presentation during his interview was consistent with autism. In oral evidence, he described her as being a very obvious
case
of autism, although he said that he had come across patients with a more severe form.
CA's
mother told him that
CA
had been given a diagnosis of autism in 2008, and gave descriptions of
CA
which Dr I stated in his oral evidence confirmed the diagnosis. Dr I described the rigidity of thinking which
CA
demonstrated around a range of issues for example, childbirth as being typical of autism. Dr I was very confident of his diagnosis of learning disability and autism, and explained in oral evidence that the combination of conditions was important. Autistic people often present similarly, but each person has a personality independent of his or her autism and it is the personality that gives each individual a unique presentation.
- It is very unfortunate that
CA's
medical
records
were not available to assist Dr I and the court. The Official Solicitor was not persuaded about the diagnosis of autism. Although it had clearly been suggested in the past, Ms Gollop submitted that there was no clear evidence of any formal diagnosis. On the other hand, the Official Solicitor accepted that there was sufficient evidence to support the diagnosis of a learning disability and that this was sufficient to meet the diagnostic test. I acknowledge that the evidence is not as comprehensive as is usually adduced in
cases
of this sort, but, on balance, I accept Dr I's expert diagnosis as to
CA's
mental state and functioning.
- Dr I's evidence was that
CA
lack
capacity
in
relation
to the medical treatment and to the management of her pregnancy. In his interview with her, she was clearly very selective in
retaining
the information she wanted to
retain,
dismissing other information she did not want to hear. Dr. I described this selectivity as a direct consequence of her autism. He concluded that she was also clearly unable to weigh the information in order to make an informed choice, although she was able to communicate her views.
- The picture painted by Dr. I was consistent with that provided by DW. She concluded that
CA
did not have
capacity
or insight about what was going to happen, or likely to happen. DW also identified that
CA
was very selective about the information she
retained
about all aspects of labour and childbirth. She had, as previously described, been unable to
relay
back information given by professionals for example, the information given by DW about pain
relief.
The same picture was provided in the evidence of the clinicians.
- On behalf of the Trust, Ms Khalique submitted that both the diagnostic and functional elements of incapacity were met in this
case.
In her opening position statement, Ms Gollop had raised a doubt as to whether either element was established on the evidence. In closing submissions, however, she conceded that there was just sufficient evidence to conclude that
CA
lack
capacity
to litigate or to make decisions about medical treatment. Taking all the evidence together, the Official Solicitor was persuaded that the functional test was also satisfied and that
CA
therefore lacked
capacity
to litigate or to make decisions about treatment.
Capacity:
conclusion
- Having considered all the evidence, I concluded, on the balance of probabilities, that
CA
is not only suffering from a learning disability but also is on the autistic spectrum. I accepted that the evidence of her mental state is by no means as comprehensive as it should be, principally as a
result
of the very late application made by the Trust. I fully understand the Official Solicitor's concern based on the written evidence, but, having heard the oral evidence of Dr I, I was persuaded that
CA
is probably on the autistic spectrum. Dr I is a specialist in autism in particular, autism in women and his evidence was persuasive on this point.
- I concluded that, as a
result
of the impairment in the functioning of her mind as a
result
of her lung disability and autism,
CA
lacked the
capacity
to understand,
retain,
way and use information so as to conduct of proceedings, and also so as to make decisions as to medical treatment, in particular as to the delivery of her baby. She lacked any
real
understanding of the
realities
of childbirth. I found that, as a
result
of her autistic spectrum disorder, she was extremely selective as to the information she
retained
and
relate
back. As a
result
of her autistic spectrum disorder and learning disability, she lacks the
capacity
to weigh up and use the information she has been given about childbirth blood tests, internal examinations, pain
relief,
methods of delivery, how to describe what she feels, whether and when to push, and generally what to do.
- It is, of course, axiomatic that someone is not to be treated as unable to make a decision unless all practicable steps are being taken to help without success. In this
case,
medical staff, and in particular the midwife DW, have tried their utmost to help
CA
make these decisions. Despite their best efforts, she is simply unable to do so.
- I therefore declare that
CA
lacks the
capacity
to conduct litigation and also to make decisions about treatment in pregnancy and labour.
Best interests
- Under s.1 (5) of the Act,
"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."
The steps to be taken to determine what is in a person's best interests are set out
in s.4 which provides inter alia:
"(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of (a) the 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 what might be in his best interests.
(2) The person making the determination must consider all the
relevant
circumstances and, in particular, take the following steps.
(3) He must consider (a) whether it is likely that the person will at some time have the
capacity
in
relation
to the mater in question, and (b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as
reasonably
practicable, permit and encourage the person to participate, or improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
.
(6) He must consider, so far as is
reasonably
ascertainable, (a) the person's past and present wishes and feelings (and, in particular, any
relevant
written statement made by him when he had
capacity);
(b) the beliefs and values that would be likely to influence his decision if he had
capacity,
and (c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind; (b) anyone engaged in
caring
for the person or interested in his welfare; (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed by the court."
CA's
wishes and feelings were therefore a matter of considerable importance in the best interests analysis. She has clearly and consistently expressed her wish to have her baby at home rather than in hospital. She has shown a strong aversion to hospitals and medical equipment, a mistrust of doctors, and an extreme
reluctance
to be examined by medical staff.
- Her most
recent
opportunity to express her wishes and feelings
came
during the visit by the Official Solicitor's
representative,
Ms Hejabizadeha, on 11th November. Ms Hejabizadeha started her interview by explaining about the court hearing, to which
CA
said that she wanted the
case
closed and did not want to talk about it. She confirmed that she wanted to give birth at home but
recognised
that it was probably not going to happen. She explained that she wants to do it all herself and that she would see it as an achievement to be able to give birth in the house all by herself. She said that she did not want to spend one minute in hospital because "there are too many bad memories of my childhood and my life". She said that blood tests would be "out of the question". She gave the same answer when asked about her views on being examined by a doctor. She was unable to think of any risks of having a baby at home and was sure that nothing could go wrong. The whole of the family would be there for her and the baby. She said that she had heard the term "
Caesarean
section" a lot of times but did not want it although she was unable to explain why. Finally, Ms Hejabizadeha asked again about the court
case,
saying that it was now a judge had to make the decision. To this,
CA
said that the judge was not having the baby but she was.
- There were a number of striking aspects of
CA's
expressed wishes and feelings which command
respect.
Most striking of all, perhaps, were her strong independence and ardent wish to have the baby at home and do it all by herself. On the other hand, it is plain from Ms Hejabizadeha's note, as it is from the other evidence, in particular that of DW, that
CA
has little understanding of what is involved in labour and childbirth.
- It seemed likely that this clear expression of her wishes was linked in some way to her own early experiences, and in particular of being cut. It is, of course, essential to avoid speculation. In my judgment, however, it was an inference which this court could and should draw that her aversion to medical treatment was linked to her traumatic experiences as a child. On behalf of the Official Solicitor, Ms Gollop was critical of the Trust's failure to address the issue of
CA's
trauma when preparing her for the delivery of the baby. In opening submissions, she emphasised the fact that
CA
has experience of men cutting her abdomen
repeatedly
against her will and that no one therefore knows how she would feel and
react
to the experience of
recovering
from a general anaesthetic, surrounded by doctors and nurses whom she already trusts very little if at all, only to find that she had been cut again. Ms Gollop suggested that
CA
may well not experience a
Caesarean
section as less traumatic than a vaginal delivery.
- Mr G, in consultation with another consultant obstetrician, drew up a balance sheet of the advantages and disadvantages of the various options for delivery. The benefits of an elective
Caesarean
section included:
(1) it would allow
CA
sufficient time to process the information about the proposed procedure in her own time;
(2) it would be a more controlled and structured process so that
CA
would be aware of the stages involved and more likely to avert undue stress;
(3) it would eliminate potential emergency interventions and consequences which could be less tolerable for her;
(4) it would allow her to undergo adequate physical and psychological preparation specific for the birth;
(5) it would
reduce
the potential of undue physical
restraint
to enable
care
to take place, an action that could have a lasting dramatic effect on her;
(6) it would not
require
continuous foetal monitoring;
(7) it would afford hospital-based
caregivers
the opportunity to plan appropriately and specifically for any potential complication;
(8) it would allow other
caregivers
to plan adequately untimely provision of
care
for both
CA
and the baby.
On the other hand, the drawbacks of an elective
Caesarean
section included
(1) the thought of having a major surgery could be daunting for her and its impact on her would be impossible to assess;
(2) it would in her
case
require
a general anaesthetic and possibly some degree of
restraint
during that process;
(3)
CA
would be more likely to experience post-delivery pain, although that could be managed adequately;
(4) it may make it more difficult for her to bond with the baby;
(5) it would create yet another scar on her abdomen which could lead to an adverse psychological effect;
(6) it may take her longer to
recover
physically than from a vaginal delivery.
- Mr G and his colleague identified the following benefits of vaginal delivery:
(1) a potential shorter stay in hospital;
(2) no abdominal scar;
(3) it may make it easier for her to bond with the baby;
(4) a quicker
recovery
would be more likely;
(5) she would
require
less physical support; and
(6) it would involve less pain
relief
after the birth.
On the other hand, they identified the following disadvantages:
(1) it would
require
regular
foetal monitoring which she was likely to
refuse;
(2) as a
result,
there was the potential for poor foetal outcome, with a possible adverse impact on
CA;
(3) there was an increased risk of potential injury to
CA
and others due to her possible non-compliance with medical intervention;
(4) as labour is a prolonged process associated with escalating levels of pain, there was a risk of significant and lasting psychological impact on her which might compound her pre-existing post-traumatic stress disorder;
(5) vaginal delivery is associated with perineal and vaginal injuries and it was difficult to assess how she would
respond
to such complications;
(6) it was likely that this would involve significant
restraint
and therefore associated physical and psychological trauma;
(7) there was a greater risk of an unplanned delivery at home;
(8) as
CA
was more likely to decline vaginal examinations during labour, it would be difficult to assess progress and institute appropriate intervention;
(9) due to her
reluctance
to comply with medical interventions, it would be difficult to manage a potential post-part haemorrhage which might put her life at risk.
- Mr G and his colleague therefore concluded that, based on the above risk assessment and taking into account her history of non-compliance and lack of
capacity
to consent to surgical intervention, an elective
Caesarean
section would be the safest, least traumatic and most appropriate mode of delivery. The
recognised
potential drawback for the proposed abdominal surgery could be mitigated in part by cooperation between the obstetrician and psychiatrist, coupled with an appropriate and adequate support structure in the immediate and long-term after delivery.
- In oral evidence, Mr G added that, when a mother has undergone FGM, there is a risk that vaginal labour may lead to a tear and blood loss, although this risk was greater in
cases
of type 3 FGM than type 1. Given
CA's
antipathy towards medical examination, assessing and treating this heightened risk of a tear would be more difficult than usual. Mr G observed that a substantial proportion of deliveries just over one in four vaginal deliveries lead to an emergency
Caesarean
section. Statistically, therefore, there was a significant risk that a vaginal delivery in
CA's
case
would lead to such an emergency.
- In his
report,
Dr I concluded that the option of a vaginal delivery was unrealistic due to
CA's
refusal
to allow the midwife to
carry
out
repeated
vaginal examinations to monitor the progress of her labour; her
refusal
to talk through various options for pain
relief;
her
refusal
to allow administration of any necessary injectable medication if
required;
her anticipation that the baby would just "pop out"; her lack of
realisation
that the experience of first delivery may be long and often painful; her
reluctance
to comply with instructions and the consequent risk of lack of cooperation, for example when instructed to push, leading to an uncoordinated or chaotic labour process. He therefore concluded that
CA
was not adequately prepared to go through the process of natural birth and that, if she was allowed to proceed with that of mode of delivery, it was likely to end with an emergency
Caesarean
section. In his opinion, this would be the least desirable option and the most risky for both mother and baby. It would be practically difficult to assemble the multi-professional team of her choice for a natural birth out of hours, or in the likely event of an emergency
Caesarean
section. Dr I also formed the opinion that
CA
was unlikely to understand the rationale for a
Caesarean
section in an emergency due to her heightened anxiety and was therefore unlikely to cooperate. This in turn was likely to lead to delay, putting both baby and mother at unnecessary and avoidable risk.
- Dr I therefore concurred with the opinion of the multi-professional team that a planned
Caesarean
section was the safest option. This would not only allow assembling a team of familiar faces but also would
reduce
the risk of uncertainties and chaos. He was aware that
CA
may
require
a degree of
restraint
for the administration of injectable medication, but the alternative options of a natural birth and/or an emergency
Caesarean
section also likely to
require
a degree of
restraint.
Restraint
was therefore in all probability unavoidable whichever option was preferred.
- Cross-examined by Ms Gollop, Dr I accepted that
CA's
experience of trauma in childhood was
relevant
to the best interests decision because of the possibility that it could contribute to further trauma around the birth. In his view, however, there would be a greater risk of psychological damage if
CA
started a vaginal delivery but then had undergo an emergency
Caesarean
section after experiencing the pain, anxiety and trauma of the emergency. Dr I was further concerned that during a vaginal labour
CA's
attitude to medical procedures and doctors, coupled with her phobia of needles, would lead her to continue to
refuse
pain
relief.
Whilst acknowledging that many people on the autistic spectrum have a higher pain threshold, Dr I was concerned that
CA
would suffer untreated pain during labour which would
cause
a greater anxiety and distress which would be exacerbated if labour was prolonged.
Best interests: conclusion
- The court must, of course, pay
careful
attention to
CA's
expressed wishes and feelings and her experience of trauma in the past which, I infer, is the
cause,
or at least a significant
cause,
of her deep-seated aversion to medical procedures. But looking at the evidence overall, it is manifestly clear that the balance comes down decisively in favour of a planned
Caesarean
section. I accept the analysis set out in the balance sheet provided by Mr G and his colleague. I accept the further evidence of Mr G that there is a substantial risk that an attempted vaginal delivery would lead to an emergency
Caesarean
section. I accept the evidence of Dr I that an emergency
Caesarean
section would
cause
the greatest degree of psychological damage to
CA,
and that a planned
Caesarean
section is likely to lead to the least psychological damage of the options in this
case.
- Notwithstanding the delay in bringing this application to the court, I was satisfied that the evidence on this aspect was sufficiently clear cogent and comprehensive to lead me without hesitation - and with the support not only of the Trust but also of the Official Solicitor to conclude that it was in
CA's
best interests for a baby to be delivered by planned
Caesarean
section.
- I further concluded, having
regard
to evidence provided by the consultant anaesthetist Dr K, that the
Caesarean
section should be
carried
out while
CA
was under a general anaesthetic, as opposed to
regional
anaesthetic.
- The Trust put forward a detailed plan for the use of procedures for controlling and
restraining
CA
as necessary during the delivery, incorporating an assessment prior to the use of
restraint;
the use of medical or chemicals sedation if
CA
became extremely
restless
or agitated or frightened, both before and after the operation; the use of physical
restraint
by trained personnel if, as a last
resort,
in exceptional circumstances and if so directed by the clinical lead, it proved necessary to
restrain
her in order to prevent from
causing
immediate harm to herself or others; the full preparation of staff to ensure that any use of
restraint
is fully documented and accounted for; and that clinical staff monitored vital signs at all times. I accept that this plan is also in
CA's
best interests.
- At the conclusion of the hearing, I therefore made an order incorporating
(1) a declaration that
CA
lacked the
capacity
to conduct the proceedings and make decisions about medical treatment;
(2) a declaration that it was lawful and in her best interest undergo a
Caesarean
section at the Trust's hospital on or around 17 November 2016;
(3) a declaration that it was lawful and in her best interests that
restraint
as set out in the Trust's control and
restraint
plan be used as necessary to enable the treatment to be
carried
out;
(4) a declaration that arrangements for her
care
and treatment were lawful and proportionate notwithstanding that they entail the deprivation of her liberty, and
(5) an order that at all times before, during and after the birth, the Trust should take all and every
reasonable
step to minimise distress to
CA
and to preserve her dignity.
Postscript
- On 17th November, I was very pleased to learn that
CA
had given birth to a baby boy after a successful planned
Caesarean
section during which minimal
restraint
was
required
to hold her hand to administer intravenous sedation. The baby had in fact been in the breech position prior to delivery. Subsequent blood tests
revealed
that
CA was significantly anaemic and she was provided with a 2.5 litre blood transfusion.