Re CA (Natural Delivery or Caesarean Section)

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 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 15^th November, including the filing of an attendance note by the Official Solicitor’s representative following her interview with CA.

At the final hearing on 15^th 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:

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.

When addressing questions of capacity, the court must apply the following principles as set out in the Mental Capacity Act 2005.

CA was examined on 14^th 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.

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.

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

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 11^th 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:

Mr G and his colleague identified the following benefits of vaginal delivery:

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.

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

On 17^th 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.