Judge: Cohen J
Citation:  EWCOP 17
In X NHS Foundation Trust & Anor v Ms A  EWCOP 17, Cohen J was concerned with Ms A, a woman in her 30s, who was 38 weeks pregnant, and who suffered from paranoid schizophrenia. She had been in hospital on at least 5 occasions in 2007, 2011, on two occasions in 2015 and now. The admissions in 2007 and 2011 were respectively after the birth of her two children. It appeared that those admissions might have been after she ceased taking medication. There have been other referrals to mental health services not requiring hospitalisation. In September 2019, Ms Ms A stopped taking medication as she was well and wanted to try for another child. Various concerns about her mental health and functioning were raised in 2020, particularly in the last few months of the year. In early 2021, at her appointment with Dr B, her consultant obstetrician, she formed the view that Ms A lacked capacity with regard to her mental health care and treatment as she was demonstrating no insight into her previous illness. Ms A stated then , that she was hoping for a normal vaginal birth at home.
In early 2021, Ms A’s mental health deteriorated, and she was detained, first under s.2 and then s.3 MHA 1983. Simultaneously, it became clear that her baby was breech, which, if not corrected, meant that the risks in a vaginal delivery were significantly greater, and potentially fatal. Attempts to undertake a procedure to turn the baby were stymied, in part by Ms A’s anxieties which initially led her to decline it. The choice was therefore between a vaginal breech birth or a planned caesarean section.
The Trusts responsible for Ms A’s physical and mental health applied to the court for declarations and decisions about her birth arrangements. The solicitor instructed by the Official Solicitor as Ms A’s litigation friend saw Ms A. Ms A said she would not be happy and would want to have it under any circumstances, the material part of the note being set out at paragraph 12 as follows:
When asked what she would say if there were signs of distress during labour from the baby, and the medical team said that they needed to move to an emergency caesarean section, Ms A said she didn’t like thinking of the worst scenario, and didn’t like to say anything about that. Her position was summarised helpfully in the Official Solicitor’s agent’s note in these terms:
iii) It is important to have a vaginal birth;
On the evidence before him, Cohen J was in no doubt that Ms A: (a) lacked capacity to conduct the proceedings and make decisions regarding her obstetric care and treatment and (b) that she was not able to retain and weigh up the information, including the risk that the course of action that she wished presented both to herself and the foetus, and also the increased risks engaged by an emergency caesarean section rather than a planned caesarean section.
As regards her wishes, Cohen J identified (at paragraph 18) that:
There is no doubt that in her more rational moments, Ms A wants the best for her child. It is why she came off medication in 2019. At a different point of her interview with the Official Solicitor’s agent she says that “I would just like us to be healthy and well and return home safely”. She stated that the single most important thing to her is “for me and baby to be healthy, well and safe”. And indeed, it was in this sense, her being able to put the fetus first, that she presented until her relapse at the end of 2020. I am in no doubt that if she regained capacity, that it would be her wish to have a safe delivery of her child.
Cohen J made clear that he considered that Ms A’s expressed views were of great significance. However, at paragraph 22, he made clear that he was “in no doubt that the views expressed by Ms A are not in her best interests, and it is the test of her best interests which I must apply.”
Cohen J therefore endorsed the plan for transfer, including by restraint if required, to the maternity unit at the physical health hospital to undergo the planned caesarean section (although he also authorised an emergency one in the event that Ms A went into labour before the date for the planned procedure).
Cases concerning birth arrangements are always – and rightly – ones which cause concern, both to the courts, and to practitioners. In this case, it is striking the extent to which the court founded itself on what it understood to be evidence that the woman in question in fact would have wished to have been delivered safely of their baby, even if the means now being proposed were ones that they were objecting to. Their will, in other words, was being prioritised over their preferences. This case is a crucial reminder of the importance in this setting (above almost all others) of ensuring that proper steps are taken by way of advance care planning to ensure the recording of the evidence required to determine that will.