Judge: Cobb J
Citation:  EWCOP 11
Citation:  EWCOP 13
Summary: Both these cases concern DD, a 36 year old woman with a mild to borderline learning disability and autism spectrum disorder. At the time of the hearings she was at an advanced stage of pregnancy. She had what the judge described as “an extraordinary and complex obstetric history” and was expecting her sixth baby. DD’s five children were all cared for by permanent substitute carers and four of the children had been adopted.
The first case – DD (No.1)
The Applicants sought declarations and orders in relation to the care and health of DD during the final stage of her pregnancy, and in the safe delivery of the unborn baby. Specifically, the Applicants sought:
1. a declaration as to the lawfulness in arranging for DD’s baby to be delivered by planned caesarean section;
2. a further order authorising the conduct of an assessment of DD’s capacity to make decisions around contraception, following the birth.
The judge made clear that “the rulings 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”. The judge concluded that he was “acutely aware of the unusually onerous responsibility which [fell] upon [him] sitting as a Judge of the Court of Protection in determining this application”.
The judge considered that it would be right to authorise and render lawful the course proposed by the Applicants in relation to the planned caesarean. He considered that it was in DD’s best interests to authorise the caesarean and associated actions (which included forced entry into her home, restraint and sedation) even though he was conscious that to do so would inevitably have profoundly distressing consequences for DD. He did not authorise the one day assessment of DD’s capacity to make decisions about contraception and refused that part of the application.
The judge recorded that the Applicants (the body which provided DD with mental health services, the body that would provide medical obstetric treatment and the relevant local authority) had worked closely and collaboratively in seeking to resolve the exquisitely difficult issues in the case. He noted that they had prepared the application with “considerably effort and conspicuous care” and referred to “ample evidence” that since February 2014 they had sought to engage DD in their discussions and plans but that at almost every turn their efforts had been frustrated. The court had been provided with a ‘balance sheet’ analysis of the risks and benefits of the competing options on all issues.
DD was not present at the hearing but was represented by the Official Solicitor as her litigation friend. By the conclusion of the hearing and “having tested thoroughly the evidence” the Official Solicitor accepted on DD’s behalf that: (i) she lacked capacity to litigate the application in so far as it relates to the delivery of her baby; and that (ii) she lacked the capacity to make a decision about the mode of delivery of her unborn baby.
DD’s partner, BC, was neither present nor represented at the hearing. He had significant learning difficulties and was said to have a lower IQ than DD. The judge was satisfied that BC had notice of the hearing. The judge regarded it as of considerable importance that BC should take part in the proceedings and that he be encouraged to do so. The judge acknowledged that as he had not heard from BC and BC was not represented there was an interference with his Article 6 rights. However the judge noted that the relief sought required urgent adjudication and it was not appropriate or proportionate to delay the decision.
The judge heard evidence over the course of 2 days from (i) Dr F (Community Consultant Psychiatrist for adults with learning disabilities); (ii) Mr A (Consultant Gynaecologist and Obstetrician), the consultant who, it was proposed, would be in charge of DD on the labour suite; (iii) Mrs C (safeguarding midwife); (iv) Mr D (social worker and AMHP); (v) Dr Richard Latham, Consultant Forensic Psychiatrist, instructed on behalf of DD by the Official Solicitor.
DD’s obstetric history was set out in detail and was “extraordinary and complex” as indicated by the judge. The summary of the acute complications of pregnancy/child birth for DD was set out in the judgment in the following way:
1. the need for an emergency caesarean (Child 1) due to foetal distress;
2. baby in breech position requiring caesarean (Child 2);
3. DD displaying signs of a delusional disorder immediately following the birth of Child 2;
4. delusional disorder following the birth of Child 3;
5. seriously distended bladder with required catheterisation (Child 3);
6. intracerebral embolism causing fitting (status epilepticus), probably brought about by the pregnancy (Child 4); refusal to take prophylactic injections to prevent further blood clots;
7. significant post-partum haemorrhage (Child 4).
The summary does not reflect some of the more extraordinary elements of the case, which included a complete failure by DD and BC to engage with the authorities, BC helping to deliver Child 3 at home, an inability to care for the new born babies and complications which impacted on the new born children.
The judgment contains a lengthy background of DD’s current pregnancy and ante-natal care which was characterised by the social care team attempting to engage DD and BC and being “frustrated at every turn”.
The judge considered the evidence on whether DD had capacity to litigate the proceedings and whether she had capacity to decide on the mode and timing of the delivery of the baby.
It was the clear opinion of Dr F that DD lacked capacity to litigate the proceedings and the Official Solicitor conceded that she lacked capacity to litigate.
The evidence in relation to DD’s capacity to decide on the mode and timing of the delivery of her baby was more mixed. Dr F’s clear view was that she lacked capacity in that respect. Dr Latham (instructed by the Official Solicitor on DD’s behalf) felt that the conclusion on capacity was finely balanced. He considered that she was able to understand, retain and communicate information but he accepted that she lacked capacity to use or weigh information. He concluded that her lack of capacity was ‘marginal’.
The judge considered that the difference between Dr F and Dr Latham lay in describing where on the autistic spectrum DD fell to be considered, and whether her lack of capacity was to be regarded as ‘marginal’. The judge preferred the evidence of Dr F because (i) he had greater experience in assessing woman with autism and (ii) he had the benefit of meeting with DD in order to perform the assessment. The judge also noted that “a conclusion on incapacity is not necessarily a ‘marginal’ one simply because P demonstrates an inability in relation to only one of the functionality criteria in section 3(1) of the MCA 2005. I felt that Dr Latham’s evidence, taken as a whole, tended to reflect that thinking, whereas Dr F was clearer, and his reasoning more cogent, in his analysis of the discussion about DD’s inability to ‘use or weigh’ the information”.
The judge considered that there was sufficient evidence for an interim declaration that DD lacked capacity to decide whether she should submit to an assessment of her capacity to make decisions relevant to the issue of contraception.
When considering best interests, the judge adopted the approach distilled by Hayden J in Sheffield Teaching Hospital NHS Foundation Trust v TH and Another  EWCOP 4 which quoted from the speech of Baroness Hale in the Aintree case in respect of the need to understand P’s wishes and feelings.
There were 4 different proposals in this case for the mode and delivery of DD’s baby:
1. VBAC (“Vaginal Birth After Caesarean”) in hospital – spontaneous
2. VBAC in hospital – induced
3. VBAC at home
4. Caesarean section
The judge set out 3 “general important points” when resolving the issue of mode of delivery in DD’s best interests:
1. That ‘best interests’ are not limited to best medical interests, but the wider best interests of DD. It must be in the best interests of any woman carrying a full-term child whom she wants to be born alive and healthy that such a result should if possible be achieved;
2. Whatever the ethical arguments engaged, he did not have the jurisdiction to take the interests of the unborn baby into account;
3. That he must have regard to the statutory principle of least restriction.
And the following specific points, relevant to the case:
4. That it was plainly in DD’s best interests (both physically and mentally) that her child be born alive, healthy and safely;
5. DD and BC’s wishes were for a home birth without social or health care assistance;
6. A vaginal delivery most accorded with DD’s wishes, and would interfere least with her rights;
7. The Trust’s antenatal guideline for risk assessment categorised DD’s pregnancy as ‘high risk’ because: (i) she had had a previous pre-term baby (ii) she had had more than four pregnancies (iii) she had had three previous caesarean sections; and (iv) she had had previous thrombo-embolic disease.
The judgment then considers the various options in the form of a balance sheet exercise as well as DD’s ascertainable views and those of BC.
The judgment also considers the use of reasonable force and deprivation of liberty which would be necessary to give effect to any decision that attendance at hospital was required. Whilst the judge authorised the necessary steps, he did so subject to a number of restrictions (see paragraph 131 of the judgment).
On the issue of mode and delivery of DD’s baby, the judge concluded:
“In this judgment I have sought to highlight some of the key features of the relevant evidence on risk and benefit of each option. I have weighed these, and the additional competing considerations which were rehearsed in the evidence, with considerable care.
As indicated at the outset of this judgment, my decision impacts on many of the most precious and valued human rights and freedoms enjoyed by any citizen, and I am acutely conscious of the fear and confusion, the possible outrage (even if short-lived) and upset, which DD is likely to experience in having to deal with these overwhelming and distressing events.
While giving due weight to her wishes, and her fundamental rights, and those of BC, I have nonetheless come to the clear conclusion that it would be in her best interests that she should be delivered of her baby by caesarean section, and grant the Applicants the ancillary authorities they seek in order to achieve this”.
The judge further held that DD and BC should be given only partial information in respect of the delivery plan, namely that they should be told that the Applicants’ were going to arrange for a caesarean section but not when the intervention was to take place. The interference with their Article 8 rights was justified in this instance.
As stated above, the judge concluded that it would not be in DD’s best interests to authorise an assessment of her capacity to decide about future contraception at this stage.
The second case – DD (No.2)
This case was to consider:
1. whether it was in DD’s best interests that the Applicants should be authorised:
a. To provide DD with education in relation to contraception, and then
b. To assess her capacity to make decisions in relation to contraception.
this followed from the judge’s finding in DD (No. 1) that there was reason to believe that DD lacked the capacity to consent to an assessment of her capacity to make decisions in relation to contraception.
2. Whether the judge should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as it deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment;
3. Whether there was reason to believe (section 48 MCA 2005) that DD currently lacked the capacity to take decisions in relation to contraception;
4. If there was reason to believe that she currently lacked capacity (in relation to (iii) above), whether it was in DD’s best interests that a short-term contraception be administered by way of injection (and to authorise the Applicants’ staff to do so).
As in DD (No.1) the judge noted that he remained acutely aware of the extraordinary interference with DD’s private and family life, her freedoms and her liberty which flow from the steps which I earlier authorised. “In determining this application, I recognise that additional significant interference into her life is contemplated; this application, as the last, engages vividly DD’s rights under article 3, article 5, and article 8 of the ECHR.”
The judge concluded that:
1. It was in DD’s best interests that he should authorise the Applicants:
a. To provide DD with education on contraception, and then
b. To assess her capacity to make decisions in relation to contraception.
2. It was in DD’s best interests that he should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include, if necessary, forced entry into her home in order to convey her to a community health service resource, and if necessary use restraint.
3. There was reason to believe that DD currently lacked the capacity to make decisions in relation to contraception.
4. It was in DD’s best interests to be administered a Depo-Provera contraceptive injection at the time of the caesarean section and the Applicants’ staff were authorised to do so.
Recent events showed that the Applicants had made a number of attempts to engage DD and BC in a discussion about contraception but such attempts had proved fruitless.
The judge set out that he intended this judgment to be read with DD (No.1).
There had been no specific current assessment of DD’s capacity to make decisions in relation to contraception. The judge was therefore being asked to determine whether there was sufficient evidence for an interim declaration to be made.
The judgment set out in detail that during her childhood and adult life she had periodically received advice about contraception and that she had been prescribed and had used different forms of contraception. Notably, the history showed that DD had been administered the Depo-Provera injection in the past but was unwilling to use it again after 2 injections because of heavy bleeding. The history suggested that DD had been able to make capacitous decisions about contraception in the past.
Dr F (see DD No.1) gave evidence on the question of DD’s capacity in relation to contraception. He considered that there was reason to believe that DD lacked capacity to make decisions on contraception. He referred to the extreme rigidity of her thinking and understanding, and difficulty in cognitive flexibility as features of her autistic spectrum disorder. Dr F considered that “she is unable to ‘weigh in the balance information regarding the risks of her current pregnancy’ and therefore opines that it is likely ‘when making a choice regarding contraception, she will be unable to weight up information regarding risks of future pregnancy’; this stems from (or is ‘because of’: section 2(1) her autistic spectrum disorder”.
The judge held that there was reason to believe that DD lacked capacity currently to take decisions about contraception.
The Applicants wished to assess DD’s capacity to make a decision about contraception. The Applicants recognised that ‘all practicable steps’ must be taken ‘in order to help [her]’ to make the decision. The court’s intervention can only be justified if those steps have been unsuccessful.
An education plan had been prepared by the Applicants in 3 parts. At the end of Part 3, a capacity assessment would be attempted. All capacity assessments would be conducted by Dr F.
DD’s wishes were reasonably clear: she did not want any involvement from the statutory services and wanted to be left alone. It was also apparent that in the past, DD had actively sought contraception when she did not wish to bear another child.
DD’s wishes and feelings were a significant factor but on the facts of this case it was difficult to ascribe particular weight to them given that DD had not engaged at all in relation to these issues. It could be reasonably predicted that DD would have fixed and firm views that no assessment should be undertaken, particularly against her will. It was equally predictable (although not inevitable) that she would wish to choose not to have contraception at this time. BC’s views could be presumed to be the same.
It was clearly in DD’s best interests to be assessed for her capacity to make contraception decisions. No party was suggesting that DD should be compelled to co-operate with the assessment or compelled to answer questions. The Applicants accepted that threats or attempts to force DD to agree to an assessment would not be acceptable. The Applicants would take all reasonable steps to encourage DD to participate willingly in the assessment.
The judge authorised the Applicants to take steps necessary to give effect to the education assessment plan. This included removing DD forcibly from her home. The judge authorised such steps as were necessary subject to the requirements which were set out at paragraph 131 of DD (No.1) which were intended to minimise distress to DD and maintain her dignity.
In answering the question as to whether it was in DD’s best interests to be administered short term contraception at this stage, the judge noted that neither irreversible nor long acting reversible contraceptive methods were under consideration. However, pending assessment of DD’s capacity to make a decision in relation to contraception and given the risks associated with her conceiving before the court can consider the evidence, it was the judge’s decision that it was in DD’s best interests to be provided with a short term contraception. It was possible that following education on contraception and assessment DD might demonstrate that she had capacity to take the decision for herself but for the time being it was the least restrictive option and one which met her needs.
Two forms of temporary contraception were under consideration and both had caused DD some adverse side effects in the past. Two of the experts favoured the administration of a Depo-Provera injection. The judge agreed with the experts.
A further hearing would be scheduled before Cobb J to take decisions about long term contraception if the proposed assessment of capacity concluded that DD is unable to make such decisions for herself.
Comment: These cases have been covered in some detail in order to illustrate the care and scrutiny that the court must exercise when proposing to authorise action which interferes so fundamentally with a person’s Article 3, 5 and 8 rights. It will rightly only be in the most extreme cases that the court will intervene in a woman’s right to decide how she should give birth to her child (even where that woman is judged to lack capacity). The facts in this case were stark and the preponderance of evidence suggested that DD’s health and welfare would be at considerable risk if she were left to deliver her child at home as she and her partner wished. Nonetheless, the judgments still make for uncomfortable reading. The notion that a woman should be forcibly removed from her home to undergo education in relation to contraception is on the face of it difficult to reconcile with her best interests. However, the judgment carefully sets out the detailed plan to engage DD with education in relation to contraception and given her “extraordinary and complex obstetric history” it was clearly in her best interests to be enabled (if possible) to take a capacitous decision about contraception.
A further – wider – importance of this case is as regards the question it poses as to how (if at all) an approach compliant with the CRPD would differ. The CRPD (at least as interpreted by the Committee on the Right of Persons with Disabilities) is strongly predicated upon a model in which, with suitable support, all persons can be enabled to exercise legal capacity, such that substitute decisions need never be taken on their behalf. As a fallback position, the CRPD requires that, if decisions are to be taken for an individual, they must be taken so as to respect their rights, will and preferences. This case poses a particular challenge to that model given that the primary difficulties here stemmed (in broad caricature) not from over-zealous and over-hasty state involvement, but rather than from a refusal by DD and her partner to engage with support offered by the state. The risks posed by DD both to herself and her child were very significant indeed – but protecting her against those risks inevitably involved a very significant departure from her ‘will and preferences.’ This is therefore very much an example of the ‘hard case’ that those championing the strong version of the CPRD must provide practical answers to in order to persuade front-line professionals of the need to change.