Judge: Williams J
Citation:  EWCOP 23
In NHS Trust v P  EWCOP 23, Williams J was asked to endorse the covert carrying out (under general anaesthetic) of a Caesarean section on a young woman, JP. JP, who had learning disabilities (the extent and impact of which were the subject of detailed consideration), was seen by the community midwife in February 2019 and was pregnant. She was in a relationship but at that time was living at home with her mother and spending time at her boyfriend’s family home. Her due date was 14 July 2019. Over the ensuing 4 months, the community midwifery team, clinicians from the relevant NHS Trust, a learning disabilities team, and local authority adult and children’s social workers had been involved with JP and her pregnancy. By 11 May, she had moved out of her mother’s home into a supported living placement. Over the ensuing months those around JP had been seeking to support her through the pregnancy and to reach a decision as to how the delivery was to be managed.
The team at the applicant Trust eventually concluded that the only safe way to manage the labour for JP was for her to have a caesarean section under general anaesthetic. That was contrary to JP’s wishes; she had expressed a wish to have a natural birth, and hence the care plan would involve an element of deception. The plan also envisaged that the local authority would take steps to remove JP’s baby from her after birth (whether temporarily or permanently was not clear from the judgment).
The Trust did not make the application for declarations as to JP’s capacity and best interests until 31 May, by which time JP was roughly 33 weeks pregnant. Williams J was unclear why this was the case, and noted that:
On the Trust’s application, Williams J expressed himself concerned as to the evidence of JP’s decision-making capacity. The COP3, completed by JP’s consultant obstetrician and gynaecologist, Dr Sullivan, was founded upon a diagnosis of “Microcephaly (behavioural disorder).” Williams J declined to determine JP’s capacity on the basis of the doctor’s evidence, supported by hospital notes, but he declined to do so, holding, at paragraph 25 that:
I consider that where an applicant Trust asserts that a patient is suffering from a condition such as microcephaly leading to a significant learning difficulty that appropriate evidence demonstrating the condition (microcephaly) and its consequences (learning disability or significant learning difficulties) is placed before the court. Whilst I would not rule out the possibility of a consultant obstetrician and gynaecologist, particularly one with the expertise of Dr Sullivan, providing the only evidence of a learning disability, it seems to me far from satisfactory in matters of such profound importance to JP for the evidence of the impairment or disturbance in the functioning of the mind or brain to come from a clinician other than a consultant psychiatrist or psychologist, particularly where it is known that JP is known to a psychiatric team. Where such evidence is likely to be available because JP is and has been under the care of a learning disabilities team for some 2 ½ years the first port of call for such information ought to be from that specialist team, preferably the lead consultant.
The proceedings were adjourned (for a short period) to enable confirmation as to the impairment or disturbance from JP’s learning disability psychiatrist. Ultimately, on the basis of the combined evidence, Williams J declared himself:
With specific reference to the element of deception, Williams J directed himself that:
Williams J accepted the medical evidence that, objectively, a vaginal delivery was likely to be profoundly distressing for JP and extremely risky in terms of her health, and that the “alternative of a planned caesarean under general anaesthetic is the least worst of all of the options that exist.” All the clinicians and JP’s support worker agreed that the proposed plan was in her best interests, as did the Official Solicitor – who, via the solicitor instructed on JP’s behalf – had been unable to engage with her.
Williams J noted that:
Williams J noted that the following matters weighed against the approval of the proposed treatment plan:
Because of the way in which the application had been brought, Williams J had had to make his order first and then finalise his judgment subsequently. Before it was finalised, he received:
It is not obvious from the postscript whether JP’s baby was, in fact, removed.
This case stands as a reminder both of the ‘high-end’ nature of the interventions that the Court of Protection can be invited to make in obstetric cases, and of the importance of ensuring that where judicial endorsement for such interventions are being sought that the need is recognised at an early stage. It also serves as a reminder of the need for in care in establishing the nature of the material impairment or disturbance in the functioning of the mind or brain and the causative nexus between that impairment/disturbance and the functional inability to make the decision in question. And, as the judge wryly noted, the outcome of the case shows that the assessment and determination of capacity is as much an art as it is a science (hence, by way of shameless plug by Alex, the importance of the work being done under the auspices of the Mental Health and Justice project to refine the practice of that art).
Finally, in terms of representation, this case could be added to the list of those discussed in this article where we might feel uneasy at the “best interests” construction of the function of litigation friends. Whilst there is no reason at all to think that all concerned with the Official Solicitor’s office did not direct themselves very carefully before agreeing with the plan as being in JP’s best interests, the fact remains that she did not have anyone before the court actively advancing arguments supporting her clear wish to retain autonomy over what happens and her body.
 Katie having been involved in the case, she has not contributed to this summary.