A London NHS Trust v KB and A London Local Authority

The Court was asked to determine whether a Caesarean section was in the best interests of KB who suffered a hypoxic brain injury at birth which left her with microcephaly, epilepsy and moderate to severe learning disability meaning that her IQ is no higher than between 35 and 49. Her communication was largely non-verbal, confined to a very few words. Final declarations were previously made that she lacked capacity to conduct the proceedings and to make decisions in relation to her antenatal care, the manner and location of the delivery of her baby, long term contraception, including sterilisation, and deciding to engage in sexual relations. As the Judge remarked:

11. It is indeed disturbing that KB, a very vulnerable woman who is unable to consent to sexual relations, and who was or ought to have been constantly supervised, has had intercourse. Not only that, but no-one caring for her realised that she was pregnant until the GP's involvement when she was already five months pregnant.

Orders were made in that regard for disclosure to the police and for samples to be taken to assist in the identification of the perpetrator of the sexual assault.

It was not possible to ascertain her past or present wishes and feelings, or the beliefs and values that would be likely to influence her decision about mode of delivery. But Poole J was sure that, if she had capacity, KB's priority would be to do the best for her unborn baby. All those involved – both family and professionals – supported the plan and the elective Caesarean section was considered to be in her best interests. She would be brought to the hospital, undergo a generalised anaesthesia, and authority was sought to use reasonable and proportionate measures, including the use of physical or medical restraint, to facilitate the transfers between home and the maternity unit. The resulting deprivation of liberty was authorised, although the evidence to date was that she had been entirely compliant so measures amounting to deprivation might not not ultimately be required.

Whether a non-therapeutic sterilisation was in her best interests was parked for now. As the Judge remarked:

36. An order for the non-therapeutic sterilisation of a person with learning difficulties would be a draconian step and one only rarely authorised by the court. In this case, decisions about contraception, including sterilisation, are entwined with issues concerning KB's care and safeguarding. As has been noted by the allocated social worker, if KB were in a safe environment she would not need contraception. The current position is that the perpetrator of the sexual assault on KB has yet to be identified. His identification will inform decisions about safeguarding, residence, and care in the future. Depending upon those arrangements, the need for this court to make any decision on contraception may resolve itself.

As a welcome footnote, the judgment relates that the Caesarean went ahead as planned and mother and baby were well.

Comment

Given the consensus, and the alignment of the Caesarean section with what KB would have wanted, the best interests decision was not surprising. The application was necessary under the guidance at [2020] EWCOP 2 because (i) it involved an issue of non-therapeutic sterilisation, and (ii) the proposed treatment may have required a degree of restraint. Given the concerns expressed elsewhere in the judgment, the case also illustrates the importance of promptly involving the Official Solicitor in such applications, and of avoiding delay.