A NHS Foundation Trust v An Expectant Mother

This case concerns a pregnant mother who suffers from severe agoraphobia, such that she

I have heard the whole case at the Royal Courts of Justice in London in an ordinary court room open to the public, and indeed, a journalist has attended from time to time during the hearing, and is currently present as I deliver this judgment.

The mother and her family live far away from London, as, of course, do the treating medical team. In the case of the mother, there is the additional feature that, because of her agoraphobia, she would have found it impossible to travel to London, or, indeed, to any court room, to attend the hearing. For those reasons, the family have participated by video link, and the four medical witnesses gave their evidence by video link. That does not detract, however, from this hearing being an ordinary hearing in open court, open to the public who could, indeed, have watched all the evidence on the large video screen in the court room if they wished to do so.

The mother is represented by the Official Solicitor, to whom I am very grateful for the very thorough way in which she and her staff have investigated this case in a short space of time.

By the conclusion of the hearing and all the evidence, there is a large measure of agreement, such that I can summarise the facts and the issues very briefly.

The mother is now aged 21. The best estimate of her gestational EDD is around the first week of June, today being 13 May 2021. The mother had certain behavioural problems as a child and young person which it is not necessary to elaborate. From the age of about 17, she has clearly suffered from severe agoraphobia. During the last several years, she has only left her home at all on a very small handful of occasions. When she does do so, she experiences overwhelming sensations of anxiety, shortness of breath, dizziness and palpitations. As a result, she does not work, travel, or socialise or shop (except online), or engage in any leisure activities outside her small flat.

The medical evidence, including that of Dr Tyrone Glover, the consultant psychiatrist

The mother’s agoraphobia is so overwhelming that it exerts a significant effect on her ability to weigh matters in the balance if the activity in point entails her leaving her home. Further, in the opinion of Dr Glover, the mother has short-term memory problems which limit her capacity to manage and process complex, multifaceted information.

For these reasons, Dr Glover and the consultant perinatal psychiatrist for the applicant trusts both agree, as do I, that the mother lacks capacity to make decisions about whether her baby should be born at home or in hospital. Put simply, she is so overwhelmed by her agoraphobia that she is unable to weigh and process relevant considerations and unable to make any sort of decision about it. I am, accordingly, quite satisfied - and the Official Solicitor on her behalf now agrees - that the mother lacks capacity to make decisions about the location of the delivery of her baby, and also lacks litigation capacity in relation to that issue, and I will so declare.

The agoraphobia is longstanding and deep seated and there is no prospect of the mother’s capacity improving in the relevant time scale of the next two to three weeks. The Court of Protection is, accordingly, both entitled and required to make the necessary decisions for her, applying a test of her best interests. As the mother dearly wishes to give birth to a healthy baby, undamaged by the process of birth, the safety and wellbeing of the expected baby, as well as her own safety and wellbeing, are relevant to the consideration of the mother’s own best interests.

At the outset of that consideration of her best interests, I wish to make crystal clear that this case is not about the advantages or disadvantages of hospital birth or home birth, or vice- versa, upon which capacitous women may have different views and about which a capacitous expectant mother normally has autonomous and complete freedom of choice. But in this country that choice is normally made in the knowledge that if, during a home birth, a medical emergency arises which may imperil the wellbeing or even the life of the mother or the baby, the mother can be fairly rapidly transferred to a hospital if required. The nub of this case is the potential difficulty of transferring this particular mother to hospital if a medical emergency arose, but she was so overcome by her agoraphobia that she would not go. That, of course, could potentially occur at any time of day or night, or during a weekend, when far fewer resources might be available than if the mother is taken to hospital, not in labour, in a planned way so as to give birth there.

Unfortunately, due to her agoraphobia, the mother several times failed to attend hospital for

However, although child birth is the most natural of human events, it is not risk free. There are statistics which indicate that, in about 45 per cent of cases in which a young, healthy, primigravida mother embarks on a home birth, she will be transferred to hospital before the birth occurs. Of that 45 per cent, about one quarter are for urgent medical emergencies. The remainder are for important but less urgent reasons, such as a failure to progress, pain relief, or repairing tears. On that basis, about 10 per cent of all such home births require an urgent transfer to hospital for serious medical emergencies, threatening the mother and/or the baby. Professor James Walker, the consultant obstetrician instructed as an expert witness by the Official Solicitor, considered that what he called “urgent blue light ambulance transfers” occur during about one to two per cent of home births.

There is an overall statistic that about one in 200 hospital births tragically result in a stillborn or otherwise seriously damaged baby. In cases which start as home births, that figure doubles to about one in 100. The difference between the two figures is largely, if not wholly, attributable to delays in effecting a transfer from the home to the hospital. In the present case, the medical witnesses do not in any way predict that there will be any emergency; but, on the basis of those known statistics, they must, appropriately and responsibly, anticipate the possibility that there may be.

A recent case in the Court of Protection, in which MacDonald J handed down an after-theevent judgment on 5 March 2021, vividly illustrates the dilemma which may (I stress, may) arise: East Lancashire Hospitals NHS Trust v. GH [2021] EWCOP 18. In that case, a woman aged 26, in her second pregnancy, had been in labour at home for nearly 72 hours

It is, of course, possible to draw conflicting messages from that case and judgment. It could be said to illustrate that, even when doctors consider that there is an acute emergency, it may yet pass and the birth may take place at home without (apparently) long-term damage. It could be said to illustrate the capacity in some situations for a hospital to obtain an urgent hearing and an order, even in the middle of the night, when an emergency has actually arisen. But the hearing will have taken time to set up, and itself lasted nearly two hours, far too long if there had been what Professor Walker described as “a blue light ambulance emergency”.

Overall, the case illustrates, in my view, the need to anticipate problems of this kind and to face up to them as best one can in advance, even if that involves speculation and/or reliance upon statistics. In my view, therefore, it was entirely justifiable and appropriate that the hospital trusts in the present case have made the present application. Amongst other advantages, it has enabled a thorough and informed investigation to take place, as well as a fair and transparent hearing, lasting many hours, in which to test out the issues and the

The judgment of MacDonald J in East Lancashire Hospitals NHS Trust v. GH contains a very thorough analysis of the relevant law at paragraphs 19 to 28. I have read it during this hearing. I agree with it, and I incorporate it into this judgment by reference as my narrative as to the applicable law.

Based on the above statistics, the hospital trusts and the treating doctors correctly and

The expert witness obstetrician, Professor Walker, likewise expressed that, if she was in labour at home and in severe pain and/or a medical emergency arose, the mother might become more compliant with a hospital transfer. But this, too, is speculative, and is expressed in paragraph 6 of the note of the joint (online) meeting between the obstetricians on 11 May 2021 as no more than what “he would suspect”.

All the doctors who gave evidence in this case agree, the Official Solicitor now agrees, and I

The mother herself says that she would prefer to give birth at home, but she clearly expresses that that is due to her agoraphobia and fear of going out. I am satisfied that, but for her agoraphobia, the mother herself would opt for a hospital birth, as encouraged by her mother and partner.

If the mother is successfully transported to hospital to give birth there, then the birth may either be induced or by Caesarean section. The mother does have the capacity to make an informed choice between those methods, and unless there is a significant medical contraindication, the hospital will respect and be guided by her choice on the day. Similarly, if she elects a Caesarean section, she has the capacity to make an informed choice between a local or a general anaesthetic. Currently, she has clearly said that, if she is to have a Caesarean, she would prefer a general anaesthetic and to wake up when it is all over. But, of course, she has the right and capacity to change her mind about that until the last moment.

For the above reasons, it is now agreed by the Official Solicitor, who represents the mother,

It is also agreed, in the light in particular of the consensus between the psychiatrists, that it is in the best interests of the mother that sedation may be administered to her, probably 2 mg of Lorazepam, so as to calm her and help her cope with the transfer. That may be administered orally or by intramuscular injection. She does not like needles, but she accepts the need for injections and is not, as such, resistant to them. Indeed, moments before I commenced this judgment, she told me that the visiting midwife had just taken blood samples from her with no problem. All forms of reasonable encouragement and persuasion can be used, as can light physical guidance, such as the midwife or nurse taking her by the arm to assist and encourage her into the vehicle.

The issue which remains between the hospital, on the one hand, and the Official Solicitor, on the other, is as to the extent of additional force or restraint which could lawfully be used on a pre-planned transfer and admission, if she was not actually in labour and no actual acute medical emergency has actually arisen. In the latter eventuality, should it arise, the Official Solicitor has, herself, agreed and accepted that force and restraint could, if it became necessary, be used. But she submits that, short of an actual current emergency, it is not justifiable or proportionate to use force or restraint for a pre-planned admission, however desirable such an admission might otherwise be.

The hospital trusts wish to include provision and authorisation in an order, and attached care plan, for the use of reasonable force (but always the minimum necessary) even in the case of a pre-planned, non-emergency admission.

All the medical witnesses have said that this is a finely-balanced decision. Both psychiatrists have agreed that, if force is used, that may (this again is speculative) have a damaging psychological effect on this already agoraphobic person. It may entrench her agoraphobia. It may damage or impair her bonding with her baby. It may give her long-term flashbacks. It may compromise her attitude to future pregnancies, or her dealings with persons in authority. On behalf of the Official Solicitor, Ms Sophia Roper submits that these are known risks from the use of force or restraint which outweigh the more speculative and statistical risks, if the mother goes into labour at home but may then require an urgent transfer to hospital.

The judge was later informed that on 22 May 2021 the mother went into spontaneous labour at home. She contacted the hospital and travelled there with the support of her partner and mother and the community midwife. While still at home, she received 2mg of Lorazepam orally. Although initially resistant, she was guided by staff and her family into the ambulance and no restraint was required or used. A few hours later she was safely delivered of a healthy baby boy with a good birth weight. She returned home with the baby within the next day or two.