Judge: Holman J
Citation:  EWCOP 33
This case, which has attracted considerable discussion, concerned an expectant woman, aged 21 with what was described as severe agoraphobia. She had only left her house on a handful of occasions in the preceding four or five years, each time experiencing overwhelming sensations of anxiety, shortness of breath, dizziness and palpitations. She was pregnant and, in circumstances that are not set out in detail in what is a relatively short judgment, the medical teams responsible for her (it appears from the fact that there are two Trusts named in the title that one must have included a mental health team) considered that (1) the risks to her and her baby were sufficient if a home birth did not go to plan; and (2) she would not agree to leave her home to go to hospital in the event that a transfer was required. The Trusts therefore applied to court for endorsement of a plan which would see the mother transferred to hospital before she went into labour.
As to the timing of the application, Holman J referred himself to the decision of MacDonald J in East Lancashire Hospitals NHS Trust v GH  EWCOP 18, which had been brought on an emergency basis whilst the woman (again, suffering from agoraphobia) was undergoing an obstructed labour, granted late at night, and where the woman had, in fact, given birth at home before the arrangements endorsed could be implemented. Holman J noted that:
As to the woman’s capacity, the evidence before the court, including that of an independent expert psychiatrist, Dr Glover, was that the mother’s agoraphobia was:
This therefore meant that Holman J was required to consider what was in the mother’s best interests. He made clear (at paragraph 11) that he did not consider that the case was 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. However, he noted that the choice was 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. As he noted:
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.
The evidence before the court (limited somewhat by the fact that the mother had not attended hospital for scans, as a result of her agoraphobia) was that were no specific indicators that the mother would not have an uneventful spontaneous labour and vaginal delivery. Holman J, however, identified that:
In the circumstances, and whilst “the medical witnesses do not in any way predict that there will be any emergency; […] on the basis of those known statistics, they must, appropriately and responsibly, anticipate the possibility that there may be.”
How, then, to respond to this risk? The doctors agreed, and, on the woman’s behalf, the Official Solicitor agreed – an agreement endorsed by Holman J that it was: “preferable, and in the overall best interests of this particular mother and her baby, that she should give birth in hospital in a planned way around the [estimated due date], but before she goes into spontaneous labour” (paragraph 21). Having started with the medical position, Holman J also factored in the views of the woman, her partner, and her own mother:
It was also agreed that it would be in the best interests of the woman that sedation could be administered to her “so as to calm her and help her cope with the transfer.” That could be administered orally or by intramuscular injection. Holman J noted that “[s]he 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.”
It is important to note that no one sought to persuade Holman J (and he did not find) that the mother lacked capacity to make the decision whether to give birth vaginally at the hospital (after being induced) or by Caesarean section:
The one area of disagreement between the representatives was as to the extent of additional force or restraint which could lawfully be used on a pre-planned transfer and admission, if the woman was not actually in labour and no actual acute medical emergency has actually arisen. The Trusts sought provision for the use of (the minimum necessary) reasonable force. As Holman J noted, in an emergency, “[i] 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” (paragraph 26).
The medical witnesses made clear that this was a finely-balanced decision:
Having outlined what the Trusts proposed, Holman J considered that this was:
In a postscript, Holman J recorded that:
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.
This case has provoked strong reactions, which have been meticulously documented by the Open Justice Court of Protection project, which also commented critically on the fact that Holman J held the hearing in public, but did not permit members of the public to attend remotely. It should perhaps be noted that this is likely to be an issue which is going to be encountered more frequently as the courts potentially move back to a world where at least some hearings are held in physical court rooms where no-one attends remotely (there are, of course, a whole host of – sometimes finely balanced – issues about whether remote or in-person hearings are, substantively, better for the delivery of justice for the actual parties concerned). At that point, real questions are going to arise as whether remote access for members of the public – in effect broadcasting – is or should be required. These are definitely questions for another day, but they are going to be need to be answered in due course.
Turning to the substance of the decision, much of the focus of the discussion has been on (in essence) the excess risk aversion of the medical professionals involved, leading to a situation where, to pre-empt a small but very serious risk, entirely disproportionate steps were sought, agreed (in part) by the very person appointed to act as her representative, and endorsed by the court. Each of these criticisms raise entirely legitimate points (and Alex and Neil have co-written a few years ago a detailed article examining the procedural justice problem caused by the role that the Official Solicitor is required to play).
However, each of the criticisms need to be placed in their context by reference to some points which may risk getting otherwise lost.
The first is to note that the woman’s voice – ironically – seems at some points to have been lost in some of the debates. For ourselves, and having been hoping for the end of the story to come out, we would dearly love to be able to find out from her now about (1) why she contacted the hospital herself, as the postscript described her as having done; and (2) how she felt both about the process and the outcome, in circumstances where one construction of the evidence is (from a CRPD perspective) her overriding will was to be delivered of her baby safely, with all other considerations being secondary. We would not, though, purport to speak for her.
The second is that the vast majority of birth-planning decisions relating to those with mental health conditions are undertaken in collaboration with the woman, outside the court arena. That work almost invariably includes detailed and careful advance care planning (for a specific tool for use in the context of bipolar disorder, which can be adapted to address birth plans, see the PACT approach).
The third is that the woman’s case may raise legitimate questions about the risk analysis undertaken by the two trusts involved in the context of their planning (involving, it would appear from the judgment, not just doctors, but also the woman’s community midwife and community psychiatric nurse). However, again, by way of context, it is important to recall that that approaches to risk on the behalf of medical professionals are dictated in part by anticipation of societal/regulatory responses in the event of a statistically low but substantively very high risk event coming to pass.
The fourth is that there will be some circumstances in which the interventions considered necessary to secure against the risks go beyond those which can be catered for under the provisions of ss.5-6 MCA 2005. At that point, it is clear that Trusts should consider approaching the court for endorsement of the plan: see, in this regard, the Serious Medical Treatment Guidance issued by Hayden J in January 2020. At one level, some of the criticisms of the judgment amount to a challenge to the idea that Trusts should contingency plan, and seek the endorsement of the court for a contingency plan. To the extent that they do, it seems that, with respect, those criticisms are misplaced, if the alternative is to leave things to unfold and then seek authority only if then required. That does not mean that, if the contingency plan is put before the court, it should not be rigorously stress-tested, but such stress-testing can in practice only take place if there is time to do so.
The fifth is that, if the Trust(s) do come to court, it is, in reality, impossible for a judge not to take into account the potential that they might endorse a plan which could lead to the death of a viable baby. Perhaps some of the discomfort expressed in relation to this case reflects the fact that Holman J was not allowed to hold that the foetus had its own independent legal rights. Had he been able to do so, he could have conducted an express balancing exercise of those rights against (if, in reality, they were against – we do not seek to give voice to the woman here) the rights of the woman. Because he could not then, in line with all other judges who have been in a similar position, he had to take them into account through an analysis of the mother’s best interests which took into account her desire to be delivered safely of her baby. There are undoubtedly cases – although not necessarily this one – in which that analysis comes uncomfortably close to a misleading legal fiction.
 Whatever the position might be about agoraphobia generally, it appears clear from the judgment that the woman’s agoraphobia was sufficiently serious that she was under the care of a mental health Trust.