Court of Protection: invasive surgical treatment and best interests

(1) X NHS Trust (2) Y NHS Trust v Ms A [01.03.21]

Date published

23/07/2021

Sectors

Locations

The Court of Protection held that Ms A’s wish for a natural birth was not in her best interests and due to an impairment or disturbance of her mind, she lacked capacity to weigh up the risks of a natural delivery against an elective caesarean section.

Background

Ms A suffered from paranoid schizophrenia and had previously had inpatient admissions for her mental disorder. She discontinued her medication in order to fall pregnant, and during her pregnancy suffered a relapse in her condition and was detained under the Mental Health Act 1983. Ms A maintained throughout her pregnancy that she wanted a natural vaginal birth. During her third trimester, a scan showed the baby to be in the breech position which unless corrected, would mean significantly greater risks (including fatality) in delivering the baby by natural vaginal birth. Ms A was offered an external cephalic version (ECV) procedure to correct the position on two occasions but this was declined.

Shortly after, an application was filed at the Court of Protection on behalf of both the obstetric care trust, and mental health trust where Ms A was detained, in order to seek the court’s guidance.

The time for an effective ECV subsequently passed and a planned caesarean section was strongly advised by the trust. Ms A said she did not want this under any circumstances.

Ms A’s capacity was assessed by her consultant psychiatrist on the morning of the hearing who concluded that whilst she was able to understand the information, she was unable to make a decision for herself as she was “unable to retain that information” and was “unable to use or weigh that information as part of the decision-making process”.

Decision

The court accepted that Ms A was not able to weigh up the risk of a natural delivery against an elective caesarean section. In doing so the court observed that her capacity would continue to be assessed during the week ahead and if she regained capacity her wishes would be respected. By way of summary, the court (at paragraphs 25 and 26 of the judgment) made the declarations and orders sought by the trusts, which made it lawful:

  • To transfer Ms A from the mental health trust to the obstetric trust in order for her to undergo an elective caesarean section.
  • For the staff of both hospitals “to use reasonable and proportionate measures in accordance with the care plan” to facilitate her transfer – “including those which involve physical or medical restraint”.
  • In the event that Ms A went in to labour or required emergency obstetric treatment before her elective caesarean, for her to be treated by way of emergency caesarean section, if it was considered “clinically necessary to do so” and “a proportionate response”.

Comment

Applications to the Court of Protection for authority to use chemical and/or physical restraint as a last resort when providing necessary medical treatment that is considered in the patient’s best interest, are no longer uncommon.

The judgment serves as helpful guidance for front line staff, and those that support them, on the circumstances in which the Court of Protection may declare invasive surgical treatment, and any necessary restraint required in providing it, lawful for incapacitous patients. Mindful of the need to protect every patient’s dignity and self-determination wherever possible, the court will only make such declarations after very careful scrutiny of the individual circumstances of each case.

Read other items in Healthcare Brief - July 2021