The Court of Protection reported 3 significant cases involving obstetric care in 2016. They covered termination, birthing choices and hysterectomy but shared common themes which indicate judicial thinking in this area. The direction of travel is to give as much weight as possible to the mother's previous wishes, especially where those wishes were made with capacity. However the Court showed that it is still willing to authorise extremely restrictive measures, even those which fly in the face of previously expressed capacitated wishes, where there is a compelling case for it to do so. This roundup of obstetric cases in 2016 will be of interest to health and social care professionals, commissioners and providers alike.
Generally none of the cases were particularly exceptional in terms of the facts and the circumstances of the expectant mothers. Please follow this link for the full summary for each case.
The balance between past and present wishes and the views of others
It is necessary for the Court to consider the mother's past and present wishes and feelings – as well as the views of anyone engaged in caring for her or interested in her welfare. Clearly expressed previous wishes will carry significant weight however they will not always be determinative. The Court is still prepared to take a safety-first approach (even where that is restrictive) as long as it is supported by consistent, thorough and detailed medical evidence (often both obstetric and psychiatric). Another key relevant factor is whether the previously expressed wishes demonstrated limited or no insight into what they would actually involve or result in.
That being said, where previous wishes were expressed at a time when the mother had capacity they will be weighty and there is a high threshold or burden for the clinical and social care teams to overcome by producing sufficient evidence to persuade the Court to go against them. Conversely where mother's current wishes fluctuate the Court may not attach significant weight to them.
Mother's previous relevant actions are also crucial, as they either highlight an inconsistency in her wishes and feelings or they confirm that they are long-standing/maintained and are informed. Some examples of potentially relevant previous actions include:
- Voluntary compliance and engagement in antenatal care;
- Previous childbirth experience;
- Previous contraceptive decisions;
- Any fertility treatment;
- Previous termination;
- Concrete steps to arrange a termination.
This emphasises the importance of consulting widely with key people who are involved in the mother's life to obtain a well-rounded picture of her past and present wishes.
In these cases it is common that the Court will be making permissive orders. This means that the declarations and authorisations that it grants permit the health and social care teams to undertake the restrictive practices as opposed to requiring them to do so. The Judges recognise that childbirth is an unpredictable experience, and as such, will be prepared to (and often in support) make declarations authorising alternative restrictive packages to be adopted in different circumstances which may arise.
Clearly these cases can be some of the most urgent to come before the Court of Protection. Medical deadlines cannot be ignored and the Court will act quickly where it must. However, increasingly the Court is demonstrating short shrift with health and social care organisations that do not make timely applications in these cases. The settled expectation is that professionals will engage the Court proactively at an early stage (i.e. in the first/second trimester) as opposed to allowing an emergency situation to arise and having to come to Court reactively. This is because the more time there is to prepare the case and gather the necessary evidence; the more likely it is that the Court will be able to make its decision in possession of all relevant information. In these obstetric matters, the Court appears to adopt the adage "prepare for the worst (make an application for permissive – potentially alternative - declarations/authorisations) but hope for the best (where the authorised interventions are not required)."
Health and social care organisations should ensure that they have robust procedures in place to identify potential cases where the Court's intervention may be necessary and escalate them quickly if needed.
When a case should be brought to court
1. Proposed obstetric care is for serious medical treatment:
- Whether the proposed intervention is serious medical treatment will depend upon the circumstances of each case;
- A planned uncomplicated C-section is unlikely to amount to serious medical treatment;
- C-section may be serious medical treatment if the risks to mother are higher than for the average patient or where the intervention may cause a deterioration in her mental health, leading to a requirement for force/restraint to carry out the intervention.
2. It is likely that a deprivation of liberty will be required to give effect to the proposed treatment:
- I.e. there is a real risk (a genuine risk) that the mother will require more than transient or negligible forcible restraint;
3. Where there is a serious dispute as to what obstetric care is in the mother's best interests:
- The dispute must be a serious one and have real substance;
- Can be between mother and the professionals; between various members of the family or as between health and social care professionals themselves;
4. Where the proposed treatment would amount to a deprivation of liberty that would otherwise be unlawful save for authorisation from the Court:
- E.g. where the mother is ineligible for a deprivation of liberty standard authorisation.
Crucially, it is not anticipated that every proposed care plan for obstetric care for a pregnant lady with a mental disorder, illness or disturbance will require an application to Court.
- It is imperative to have a robust process in place to identify cases early so that they can be managed to a successful resolution or an application to Court be made in sufficient time if necessary.
- Clear and accurate note taking to record discussions with mothers-to-be in community midwife visits, consultations with obstetricians or other interactions is also very important so that the court can be shown as comprehensive a picture of 'P' as possible.
- The Court has emphasised again the importance of wide consultation to determine what is in a mother's best interests where there is time to do so. It will accord significant weight to consistent testimony from friends/family members as to what mother wanted prior to losing capacity.
- When considering restrictive options for treatment the Court may be more willing to authorise them if it is satisfied that the clinical team will keep less restrictive options on the table and use them if possible.
Bevan Brittan offers an obstetric mental health toolkit which helps guide your staff through these issues in a clear and coherent way. It includes:
- Flowchart to guide mental health and obstetric teams to plan lawful and compliant care (available in both hardcopy and electronically/mobile format);
- Article on the Court's guidance for these types of cases;
- Knowledge summary of "relevant information" for key obstetric capacity assessments;
- Training session to train your clinical teams on the obligations and requirements of these types of cases.