Great Western Hospitals NHS Foundation Trust v AA, BB, CC, DD

Summary: AA was 25 years old with bipolar disorder. She was 38 weeks pregnant with her first child. During the evening of 26 January 2014 she presented to hospital in a confused and disorientated state. Her waters had broken and she was admitted to the labour suite. At 7am the following day she was detained there under s.5(2) of the Mental Health Act 1983. Described as suffering from hypomania and puerperal psychosis (despite not yet having gone into labour), she was highly agitated, exhausted by lack of sleep, and was largely uncooperative with almost every aspect of her obstetric care. At 9.30pm that evening, the hospital Trust made an emergency application, the clinical team unanimously favouring the safest option of a caesarean section under a general anaesthetic.

The matter was held over until the next day. During the night AA had become more distressed. Her father described how she had run at the window trying to get out, telling him that she wanted to go to heaven. According to the psychiatric opinion, she simply did not believe that she had begun the labour process and held a strong and fixated belief that her baby could only be born on or after her due date. It was almost impossible to engage her to discuss the concerns. Hayden J declared that she lacked capacity to decide whether to undergo a caesarean section and to make decisions generally about her care and treatment in connection with her ongoing pregnancy.

The ruptured membranes significantly increased the risk of both maternal and foetal infection until delivery. And the usual plan to induce a natural labour was plainly unsuitable: AA had already removed intravenous lines on more than one occasion and would be unable to co-operate with the necessary degree of monitoring. Moreover between one third and a quarter of patients requiring inducement required an emergency caesarean section in any event which, in this case, would be particularly dangerous. However, an "elective caesarean" might require restraint to be used prior to administering the general anaesthetic and after delivery of the child if she became agitated.

In determining AA's best interests, and emphasising that the Court must focus on the welfare of the mother, and not the foetus, his Lordship observed that a survey broader than just her medical interests was required. Her partner, BB, and her parents, CC and DD, together with the Official Solicitor on her behalf, supported the caesarean option, and Hayden J believed that, were AA rational at that time, she would also have adopted that course. His Lordship continued:

"21. It is necessary to add a few further remarks about the appropriate legal framework for this application, the Trust recognising that the treatment envisaged involves a facilitative deprivation of liberty. The power under the Mental Capacity Act 2005 for the Court to make orders for AA's welfare [the declarations sought under s.16(20(a) and 17(1)(d)] include the power to make an order that deprives her of her liberty, subject to the qualifications set out in s.16A, entitled 'Section 16 powers: Mental Heath Act patients etc'. In short, a welfare order cannot authorise a deprivation of liberty if AA is ineligible to be deprived of her liberty under paragraph 17 of Schedule A1 of the MCA. That provision stipulates that Schedule 1A of the MCA applies for the purpose of determining whether or not she is ineligible. The treating team view the obstetric care not as treatment for AA's mental illness, which could be provided under the MHA, but as physical treatment. Paragraph 2 is the central provision in determining whether 'P' is ineligible. Because she is detained under s.2 of the MHA, AA falls within Case A of paragraph 2 as she is both subject to and detained under a hospital treatment regime. In A NHS Trust v Dr A [2013] EWHC 2442 (COP), Baker J endorsed the view that 'Case A is clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.' (§87) and held that force feeding (which was not treatment for P's mental disorder) could not be ordered under the MHA or MCA. The inherent jurisdiction provided the route by which treatment in the patients best interest should be authorised. The Applicant NHS Trust contends that the same analysis applies here. The Official Solicitor agrees and so do I." (emphasis in the original)

The case for treatment was compelling and accordingly it was considered to be in her best interests to have the caesarean section, if necessary under general anaesthesia. Provision was also made for the minimal use of physical restraint or force to administer the treatment/anaesthesia/sedation and/or to prevent her from leaving the ward until it was clinically appropriate to be discharged. The terms of the declaratory order are helpfully set out in an appendix to the judgment.

Finally, the Court observed:

"23. Although BB and DD were both highly supportive of the actions of the clinicians, BB told me that he was concerned by even the short delay in this case in bringing the matter to court. These issues he considered ought to be resolved in the clinical situation at the hospital. How, he asked politely and genuinely, could a judge be better placed than a doctor to take these decisions? I hope that in analysing my reasoning in the way that I have, I have already to some extent answered that question. But I would add this: the decision to restrain and compel medical procedures on those who do not have the capacity to take them themselves is an onerous one. The declaratory relief is sought for two purposes: firstly, the legal purpose, which is to cloak the Trust with the legal authority to carry out the procedure and to provide them with a defence to any allegation of criminal or tortious liability for trespass to the person (see Re W (a minor) (Medical treatment: Court's jurisdiction) [1993] Fam 64); secondly, the clinical purpose, which stems from the fact that in many instances the co-operation of a patient, or at least a patient's confidence in the efficacy of a treatment, is a major factor contributing to the treatment's success. Failure to obtain the consent of a patient not only deprives the patient but the medical staff of this advantage. The court has the jurisdiction over the legal purpose; it does not have jurisdiction over the clinical one, and its approval helps to ameliorate that disadvantage."

Comment: This was clearly a compelling case insofar as AA's incapacity and best interests were concerned. All parties agreed that a caesarean section was best, with her partner even querying whether the matter needed to go to Court. An enforced caesarean section evidently amounts to "serious medical treatment". Practice Direction E would tend to suggest that where a medical procedure or treatment must be carried out "using a degree of force to restrain the person" lacking capacity to consent to it, the matter "should" be brought to court. Countless medical procedures are undertaken and treatments provided each year which involve the "restraining" of incapacitated persons. "Restraint," that is, in the broad sense in which that term is defined in the s.6 of the MCA: namely, where one "(a) uses, or threatens to use, force to securing the doing of an act which P resists, or (b) restricts P's liberty of movement, whether or not P resists." Few such cases pass through the doors of the Court of Protection.

We would, however, suggest that 'enforced' caesarean sections, particularly if they necessitate the deprivation of the mother's liberty, are in a category of case for which very careful consideration must be given to the making of a court application.

But to which court should the application be made? In this case, Hayden J used the inherent jurisdiction of the High Court to authorise the treatment because AA was considered to be ineligible to be deprived of her liberty under the MCA. Her status under the MHA was somewhat ambiguous. On the one hand, if she was detained under MHA s.5(2) (as per paragraph 6 of the judgment), unlike Dr A's case she was not detained under a "hospital treatment regime" (as defined by MCA Sch 1A para 8). It follows that the Court of Protection could have authorised her deprivation of liberty. On the other hand paragraph 21 of the judgment refers to AA being detained under "s.2 of the MHA." Given that she remained on the labour ward throughout, this would be surprising unless that ward was registered to take MHA-detained patients or she was there under MHA s.17 leave. The first possibility seems unlikely, but if true would mean that recourse to the inherent jurisdiction was necessary (subject to any residual liberty argument – see our commentary on Dr A's case). The second possibility would have enabled the Court of Protection to authorise her deprivation of liberty, given the finding that the caesarean section was physical treatment and not for her mental illness.

Against the urgent backdrop with which the application had to be made and dealt with, the complex intricacies of MCA Schedules A1 and 1A and their interface with the inherent jurisdiction were perhaps the last thing that anyone needed! Even if the MCA had been relied upon, the same outcome would no doubt have been achieved. However, the jurisdictional issue is important because the inherent jurisdiction should only be invoked where the repertoire of MCA remedies leaves a lacuna. Moreover, the MCA provides the treating team with a defence and an emergency procedure to deprive liberty under MCA s.4B whilst getting such a case before the Court. The inherent jurisdiction, in contrast, can only be exercised by a judge of the High Court, and – at least insofar as any deprivation of liberty was concerned – the treating clinicians would be on legally thin ice before the judge was seized of the matter: (see Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam) [2010] COPLR Con Vol 10 at paragraph 74 per Munby LJ (as he then was), in which his Lordship made clear that procedures available under the inherent jurisdiction had to be invoked before embarking upon any deprivation of liberty).

According to news reports, later that same week Hayden J was again called upon to authorise a caesarean section. This time it was Royal Free London NHS Trust that applied to the Court of Protection in respect of a 32 year old who was 32-weeks pregnant. She is reported to have had diabetes and paranoid schizophrenia, to have stopped eating and to have attempted suicide. A safe delivery was necessary to enable her unstable mental state to be treated. His Lordship is reported to have held:

"The decision to compel a Caesarean section on an incapacitous woman who is mentally and physically ill is an extremely draconian one…

Doctors do not embark upon this lightly. It occurs extremely rarely. It is one that the lawyers also take very seriously indeed…

I am perfectly satisfied that at the moment [this woman] is not able to make any reasoned evaluation of the advantages and disadvantages of a Caesarean section."

Unlike AA's case, no force was to be used against her as, it seems, her treating team believed that she could be persuaded to agree to sedation. It was then subsequently reported that no restraint was necessary, her baby was delivered without any problem, and she hugged the surgeon after recovering consciousness.