This article originally appeared in Issue 5 (May 2020).
The Court of Protection made a contingent declaration allowing for a caesarean section to take place in the event of a patient losing capacity in the midst of labour.
“R” was a detained psychiatric patient in the late stages of her pregnancy. Although she had Bipolar Affective Disorder which was characterised by psychotic episodes, it was agreed between the clinicians providing her with psychiatric and obstetric treatment that she had capacity to make decisions as to her antenatal and obstetric care. However, it was also agreed that there was a substantial risk of her (a) suffering a deterioration in her mental health and so losing that capacity in the course of labour and (b) requiring an emergency caesarean section, which it was anticipated she might resist (it was something which she had previously described as “the last thing she wanted”).
The application (which was brought by the Trusts involved in her care) required the Court of Protection to consider its power to make a declaration authorising a possible future course of treatment in respect of a patient who had relevant capacity at the time of the hearing. In a detailed judgment, Hayden J decided that section 15(1)(c) of the Mental Capacity Act 2005 (“MCA 2005”) provided the court with the relevant jurisdiction. That provision provides that the court has the power to make declarations as to “the lawfulness or otherwise of any act done, or yet to be done” (emphasis added) in relation to the relevant patient. In reaching that conclusion, he also confirmed that the jurisdiction did not arise under section 16, as had been contemplated in some previous cases.
It was held that the wording of section 15(1)(c) (in particular the words “any act…yet to be done”) contemplated a factual scenario occurring at some future point, and thus could logically encompass not just future acts based upon current circumstances, but also future acts based on potential future circumstances. Accordingly, the court had the power to make a declaration which made lawful a future course of medical treatment when and only when the patient became incapacitous.
A further issue, however, was that the course of treatment proposed potentially involved a deprivation of liberty, because the declaration sought provided for the “transport and treatment” of R, which could involve moving her against her will. The advocates involved in the case submitted that the MCA 2005 only permitted orders entailing a deprivation of liberty in carefully circumscribed circumstances explicitly laid out in the statute (e.g. under section 16, section 4A, 4B and Schedule A1). The court agreed. The answer to this problem was to be found in the court’s inherent jurisdiction. Whilst Hayden J acknowledged that such jurisdiction was to be deployed sparingly, he explained at :
“…Having concluded that Section 15(1)(c) is apt to authorise contingent declarations, it would be rendered nugatory if there were no mechanism to authorise the contemplated intervention as being lawful. This is, to my mind, a paradigmatic situation for recourse to the inherent jurisdiction.”
The court recognised that such contingent orders ought to be exceptional, but ultimately decided to make a declaration confirming that if R lost capacity in the course of labour, she could be transferred from her psychiatric unit (against her will if necessary) for the purpose of being provided with obstetric care. This was on the basis that, if those circumstances arose, that course of action would be in her best interests.
It is clear from the judgment that Hayden J considered this to be an exceptional outcome, not least because the clear wishes of R, as a capacitous individual, were that she did not want to undergo a caesarean section. That was to be considered against powerful legal authority which underscored the right of a pregnant woman’s autonomy to refuse medical intervention, even when the life of her unborn child depended on it (see St George’s Health Care NHS Trust v S  3 All ER 673). At  he explained:
“…I am not being asked to authorise medical intervention in relation to a capacitous adult. I am being invited to determine whether, if the adult in question loses capacity, a medical intervention can be authorised which is contrary to her expressed wishes, whilst capacitous. In virtually every application that comes before this Court, relating to medical treatment, the answer to the question posed here would be a resounding ‘no’. There is now a raft of case law, including many of my own judgments, which illustrate the efforts the Court of Protection will go to in order to identify what the likely wishes of P would be, in circumstances where P has lost the capacity for the relevant decision making (see e.g.: Cumbria NHS Clinical Commissioning Group v Ms S & Ors  EWCOP 32 ; Briggs v Briggs  EWCOP 53 ; Salford Royal NHS Foundation Trust v Mrs P  EWCOP 23 ; PL v Sutton Commissioning Group  EWCOP 22 ). Whilst the identified wishes of P will not in and of themselves be determinative, they will always be given substantial weight and are highly likely to be reflected in the order or declaration the Court makes…”
However, Hayden J was also concerned to reflect that a hypothetical capacitous R in the midst of labour might well change her mind, and he wanted to give weight to that aspect of her autonomy. The conundrum is encapsulated at  of the judgment:
“The particular challenge presented by the facts of this case…is that unlike her capacitous coeval, the mother, upon losing capacity, would lose the opportunity to express a changed decision. The birth process is, self- evidently, highly dynamic. It will frequently require obstetric re-evaluation. With considerable diffidence, I suspect that many birth plans are changed, when confronted with the painful realities of a complicated labour. Many expectant mothers who may have vociferously disavowed epidurals re-evaluate this choice in labour. This is true of the whole gamut of obstetric options, including both induction and caesarean section. Accordingly, the strength and consistency of previously expressed views must be considered with intense subtlety and sensitivity in this highly uncertain and emotionally charged obstetric context. Thus, it seems to me, that I must balance my instinctive inclination to protect the autonomy of a woman’s control over the invasion of her own body, with my obligation to try to ensure that her options on losing capacity are not diminished.”
It was also relevant in this case that R’s expressed opposition to a caesarean section appeared to be based upon a belief that it was best for both her and her baby i.e. it was not based upon religious grounds in full knowledge that it might lead to the death of her child, see :
“…It is important that respect for P’s autonomy remains in focus but it will rarely be the case, in my judgement, that P’s best interests will be promoted by permitting the death of, or brain injury to, an otherwise viable and healthy foetus. In this case it may be that R’s instincts and intuitive understanding of her own body (which it must be emphasised were entirely correct) led to her strenuous insistence on a natural birth. Notwithstanding the paucity of information available, I note that there is nothing at all to suggest that R was motivated by anything other than an honest belief that this was best for both her and her baby. It is to be distinguished, for example, from those circumstances where intervention is resisted on religious or ethical grounds. In the circumstances therefore, it seems reasonable to conclude that R would wish for a safe birth and a healthy baby.”
He concluded as follows at  – :
“I do not think that I have previously delivered a judgment relating to serious medical intervention, in which I have decided the issue contrary to the identifiable wishes and feelings of P. These views are often articulated with clarity, colour and, with remarkable frequency, humour by P’s family and close friends, at a time when P has lost the capacity for reasoned expression. The Court of Protection has, for example, recognised P’s right to refuse lifesaving dialysis. It has declined applications to authorise amputations which would have, at least, significantly extended life. In extreme cases the Court has respected the refusal of nutrition by those with chronic eating disorders. The case law emphasises the importance of individual autonomy.
Caesarean sections however, present particular challenges even weighed against all these parlous circumstances. The inviolability of a woman’s body is a facet of her fundamental freedom but so too is her right to take decisions relating to her unborn child based on access, at all stages, to the complete range of options available to her. Loss of capacity in the process of labour may crucially inhibit a woman’s entitlement to make choices. At this stage the Court is required to step in to protect her, recognising that this will always require a complex, delicate and sensitive evaluation of a range of her competing rights and interests. The outcome will always depend on the particular circumstances of the individual case.”