Williams J approves plan for covert sedation and C-section of incapacitous 25 year old
The best laid plans …
In NHS Trust v JP [2019] EWCOP 23[1], in a decision which emphasises the importance of an overall evaluation of best interests rather than placing undue focus on any one of several important factors, Williams J made declarations that a pregnant woman with a learning disability lacked capacity to make decisions about her obstetric care and the delivery of her baby and that, notwithstanding her wish to have a natural delivery, it was in her best interests to undergo a caesarean section, with restraint and covertly administered sedation if required, because of her perceived inability to cope with a natural delivery.
In the event, JP went into labour spontaneously the day after the hearing, and delivered a healthy baby naturally at the hospital, with no restraint or sedation being required. The fact that JP confounded the expectations of the clinicians, the lawyers and the court does not, of course, mean either that the application was ill-founded or that the court’s decision was wrong, but as the judge commented in a postscript to his judgment: “The capacity for individuals to confound judges’ assessments is a reminder (to me at least) of the gap between probabilities and actuality.”
Factual background
In February 2019 JP, who was 25 years old, was seen by the community midwife: she was pregnant and her due date was 14 July 2019. She was living at home with her mother and spending time at her boyfriend’s family home. In early May she moved out of her mother’s home and into a supported living placement, where she had significant one to one support.
During her pregnancy community midwives and the Trust’s lead consultant obstetrician for women with mental health or learning disability attempted on a number of occasions to discuss with JP the plans for her labour, both at home and in clinic at the hospital. She engaged at best only briefly, and repeatedly became distressed, agitated and aggressive. She was very distressed by the baby kicking. She said that she would like to push the baby out and did not want to be cut open, and was described as “petrified” of having a caesarean. She was very distressed and resistant when blood was being taken, and during monitoring of the baby. She did, though, allow a physical internal examination at the hospital.
Best interests
On 24 May 2019, clinicians, including the obstetrician, midwives and an anaesthetist, concluded that a planned caesarean would be in JP’s best interests, as it was highly unlikely that she would have a successful vaginal delivery and attempting it would be high risk. JP appeared to have a very low tolerance for pain and it was thought the pain of natural childbirth would be difficult to manage, particularly as she was averse to needles. An epidural would not be practicable and gas and air was unlikely to be effective. It was considered that JP would be unable to tolerate normal monitoring of her and her baby’s wellbeing, meaning that the onset of any complications would not be detected, and she and the baby would be put at risk. There would be an increased risk of an emergency caesarean section.
The application to court was made on 31 May 2019, when JP was some 33 weeks’ pregnant. It was planned that a caesarean section should be performed on 25 June 2019, when she would be 37 weeks’ pregnant. The Official Solicitor supported the application.
Williams J concluded that a natural delivery was likely to be profoundly distressing for JP, and extremely risky in terms of her health, so that, even though her wish to give birth naturally and to retain autonomy over her own body were very important factors, it was in her best interests overall to undergo a planned caesarean section in accordance with the Trust’s proposed treatment plan, as the least worst option.
This decision is unsurprising. The evidence as to JP’s likely inability to cope with a natural delivery appears to have been powerful, and, whilst JP’s right to autonomy over her own body was acknowledged as a very important factor, it was quite properly not elevated to a status above all other aspects of her best interests.
The judge specifically considered not only JP’s actual wishes, but also, as he was required to do under s.4(6) MCA, the beliefs and values that would be likely to influence her decision if she had capacity, and the other factors she would be likely to consider if she were able to do so. He concluded that, as she did not tolerate pain well, and appeared to welcome interventions to reduce pain, she would be likely to wish for an intervention that would minimise or eradicate the pain of natural childbirth and that if she had capacity she would opt for an elective caesarean section.
Deception, restraint and (covert) sedation
Williams J authorised the use of restraint and sedation, if required, both to transfer JP to hospital and to anaesthetise her for the purpose of performing the caesarean. It was proposed that on the morning of the planned caesarean JP should be given a pretext for going to hospital, rather than being told what was actually to happen. This plan was approved, and the judge specifically authorised the covert administration of sedative medication, and out of hospital anaesthesia if necessary, in order to take JP to hospital if she could not be persuaded to go.
On the subject of deceit, he reminded himself that the court has previously confirmed that deception can be compliant with an individual’s Article 8 rights provided the best interests exercise has been carried out, and held that if it was in JP’s best interests for deception or misrepresentation to take place then the court would be obliged to authorise that:
“To hold otherwise would be to supplant the best interests of JP by some other principle, perhaps of public policy, that the court should not condone white lies.”
Adequacy of capacity evidence
The capacity evidence was initially provided by the Trust’s lead consultant obstetrician for women with mental health or learning disability. The recorded diagnosis in the COP3 was “Microcephaly (behavioural disorder)” and in her statement the obstetrician said that JP had “significant learning disabilities from microcephaly. JP also has behavioural problems.” In evidence, the obstetrician said that she understood the diagnosis of microcephaly came from the GP records, and that she was aware that JP was under the care of the learning disability team. She had assessed JP herself and was satisfied that JP had a learning disability.
The criteria for a finding of lack of capacity set out in s.3 Mental Capacity Act 2005 were said to be met because JP did not understand the possibility of any complications or difficulty with childbirth, for either herself or the baby, and that she refused or was unable to discuss the possibility of such complications or the potential need for any intervention, without becoming distressed and aggressive. The obstetrician’s opinion was that her lack of engagement was “due to the combination of her limited intellect being exacerbated by her stress level and the behaviour that this brings about.”
Williams J accepted the obstetrician’s evidence as to JP’s functional inability to make decisions about her obstetric care, but was not satisfied with the evidence as to impairment of or disturbance in the functioning of, the mind or brain, saying:
“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.”
Further evidence was therefore obtained from the consultant psychiatrist in the learning disability team, who confirmed that he had met with JP during her pregnancy, had diagnosed her as suffering from a mild to moderate learning disability, and that he had to use very simple language to JP as she found it hard to understand normal or complex sentences. He also confirmed, after liaising with JP’s GP, that she was on the GP’s learning disability register and that she had been diagnosed with microcephaly at the age of 2.
There is no rule, and this case certainly does not establish any rule, that evidence as to capacity must come from a psychiatrist, although the Court of Appeal in St George’s NHS Healthcare Trust v S [1999] Fam 26 [1998] 3 WLR 936 stated that:
“In many such cases the patient’s general practitioner or other responsible doctor may be sufficiently qualified to make the necessary assessment, but in serious or complex cases involving difficult issues about the future health and well-being or even the life of the patient, the issue of capacity should be examined by an independent psychiatrist…”
Indeed, sometimes psychiatrists will be reluctant to undertake an assessment of a person’s functional ability to make a specific decision about medical treatment, because they do not have the necessary clinical expertise in the proposed treatment in question to discuss the risks and benefits of it with the patient.
What this case perhaps illustrates, though, is that what may be perfectly obvious to the clinicians who have met a patient, in this case that she had a learning disability, needs to be clearly communicated and evidenced in the capacity assessment, so that it can be relied on by the court which is making fundamental decisions impacting on the person’s personal autonomy. There is a reason why box 7.1 on the COP3 form, for recording the impairment of or disturbance in the functioning of, the mind or brain, and any diagnosis, is large enough to contain several lines of text.
Footnotes
[1] https://www.bailii.org/ew/cases/EWCOP/2019/23.html
Michael Mylonas QC is Head of the Serjeants’ Inn Court of Protection Team. Debra Powell QC of Serjeants’ Inn Chambers was instructed by the Official Solicitor for the Respondent, JP.