A London NHS Trust v KB [2020] EWCOP 59

The Court of Protection granted an order to an NHS Trust permitting it to require KB to undergo a caesarean section prior to spontaneous labour in her own best interests, using proportionate restraint if necessary. As Poole J noted, although the order was agreed by all parties, it involved the court “giving consent to a significant intervention and it comes to court against a background of some disturbing circumstances”.

KB had suffered a hypoxic brain injury at birth, leaving her with moderate to severe learning disabilities, and some physical disability. Her communication was limited to a few words and was mostly non-verbal, and she was not capable of independent living. In July 2020 she visited her GP with her mother as she was feeling unwell, and found to be 22 weeks pregnant.

There was clear evidence from KB’s allocated social worker, midwife, obstetrician and anaesthetist, which led the court to conclude that KB could not understand that she was pregnant, or the implications of that. In November 2020 an order was made that she lacked capacity to make decisions as to her antenatal care, the delivery of her baby, contraception and engagement in sexual relations.

The Trust’s present application was necessary because it involved issues relating to contraception and the potential need for restraint, applying the Guidance on Applications in Relation to Medical Treatment, authorised by the Vice President of the Court of Protection, Mr Justice Hayden, at [2020] EWCOP 2.

In considering the order sought by the Trust and applying the best interests test set out in section 4 of the Mental Capacity Act 2005, Poole J noted that due to KB’s lack of understanding, she would find labour and vaginal delivery extraordinarily distressing. In contrast, an elective caesarean section would result in the birth of a healthy baby, and avoid the traumatic experience that labour would entail for her. In other words, it would reduce the risks to her and the baby. Poole J also formed the view that if KB had had capacity, she would have wished to do what was best for her unborn child, which in this case was to undergo a caesarean section.

He also found that it was necessary and proportionate to authorise restraint if required in order to effect that treatment plan – see [27]:

“The authorisation of restraint is not lightly given. KB is a very vulnerable woman who would not comprehend why she was being taken to hospital. The evidence to date is that KB has been entirely compliant with visiting hospital, and examinations, save for recoiling when palpated during one examination. Nevertheless, authorisation is sought as set out above in the event that she is not compliant in the future. KB has human rights under Art 5 and Art 8 of the European Convention on Human Rights and it is troubling to be asked to authorise the deprivation of her liberty and the use of restraint if necessary, but the far more alarming prospect is of her not receiving the obstetric treatment that she will obviously need in the days ahead of this hearing. I am quite satisfied that the proposed deprivations of liberty, including the provision for the use of restraint, are necessary, proportionate and in her best interests.”

Poole J also passed comment on various aspects of delay in the case, including delays in medical appointments and decision-making which meant that the opportunity for termination (if found to be in KB’s best interests) was lost. Also, there had been delay in making the present application (KB was almost at full term). However, the role of the Court of Protection was to look forwards. In that regard, as well as granting the order sought in relation to delivery, it noted that decisions about contraception and sterilisation would need to be taken, but that this would happen after the identification of the father and the circumstances in which KB had fallen pregnant. Given that KB was incapable of consenting to sexual intercourse, that individual was in fact the perpetrator of a sexual assault, and the court made orders to permit samples being taken from KB to assist in identifying him, as well as police disclosure orders so that any relevant information about the police investigations could be used in assessing KB’s care and best interests moving forwards. Happily, there is a short postscript appended to the judgment confirming that KB gave birth by caesarean section later in November 2020, and that both mother and baby were doing well.