Key Obstetric Case Summaries

Case

An NHS Trust v CS [2016] EWCOP 10

Topics

• Mental Capacity
• Obstetrics
• Termination of pregnancy
• Capacity to consent to medical procedures

Practical Impact

• What weight should be given to previous, capacitated expressions of a wish to terminate a pregnancy? A clear and consistent expression of a wish to terminate a pregnancy will be given a heavy weighting by the court and is likely to be determinative where that course of action is also in accordance with the patient's health and welfare.
• Any organisation considering applying to Court in such circumstances should ensure that it consults widely with appropriate family members and friends to build up as accurate a picture of the person in questions wishes as possible
• Identify potential cases as quickly as possible there is a necessity for urgency given the time pressure.

Summary

The Court gave considerable weight to CS' wishes as they had been expressed before she lost capacity. This was based on 'very clear evidence that CS expressed an intention on a number of occasions prior to the injury that she wanted to terminate her pregnancy.'

It was an important fact that CS previously had terminated a pregnancy and therefore had experienced the physical and emotional consequences of the procedure and had still wished to go ahead with it when she had capacity.

Medical evidence was also that continuing her pregnancy would involve a greater risk of injury to her physical health as it was likely she would become more prone to falls, whereas a termination was likely to promote her physical recovery and rehabilitation.

These factors outweighed her present unclear and contradictory views.

CS was in a relationship in which her partner violently abused her. She discovered that she was pregnant by the partner. Following this discovery she told a number of people that she did not intend to keep the baby and that she wanted an abortion and she wanted her sister to accompany her to the clinic. She had previously had an abortion and been accompanied by her sister in a similar manner. Soon after discussing this with her sister, CS was violently assaulted by her partner. She suffered brain damage and at the time in question had a very uncertain prognosis. The hospital Trust caring for her made an urgent application to Court for orders as to her capacity and as to what was in her best interests.

• The urgency of the case is crucial. Here there was a reasonable prospect that CS would regain capacity (and thus be able to make the decision without the Court's intervention) but that would almost certainly not be within the limited timescale needed for an effective and lawful termination. This emphasises the importance of acting quickly in such cases.
• It is necessary for the Court to consider the mother's past and present wishes and feelings and the views of anyone engaged in caring for her or interested in her welfare. Previous actions, such as previously undergoing a termination are also weighty. This emphasises the importance for a Trust of consulting widely with key people who are involved in the mother's life to obtain a well-rounded picture of their past and present wishes.
• Where current wishes fluctuate the Court will find it very difficult to attach significant weight to them.

Case

NHS Acute Trust v C [2016] EWCOP 17

Topics

• Mental Capacity
• Pregnancy/child birth
• Capacity to consent to medical procedures
• Least restrictive method

Practical Impact

• Even though the MCA requires that regard must be had to using the least restrictive possible method, the Court is willing to authorise more restrictive measures even where this contradicts with the clear wishes of the mother in question.
• When planning the proposed intervention keep all options under review and be prepared to be flexible as a clinical team - the Court may only be willing to make a permissive order and may require the treating team to keep less restrictive options on the table.

Summary

Upon hearing detailed medical evidence from a consultant obstetrician, midwife and consultant psychiatrist and upon the Official Solicitor for C agreeing with the order sought, the Court agreed to make a permissive order that it is in C's best interests to receive treatment and care pursuant to a care plan to include a caesarean section and that it would be lawful to use sedation and/or physical restraint as necessary and proportionate to enable that care to be provided safely.

An order in such terms was granted despite C's clear prior wishes that she wanted a natural birth. The Court may be more willing to grant such an order where it is permissive rather than determinative and the treating team give assurances that they will keep the situation under review and actively consider whether or not it is safe to use a less restrictive method to manage the risks as the pregnancy progresses.

C was a patient with a long-standing bi-polar affective disorder, who suffered a relapse in her mental condition in the late stages of pregnancy. She was detained under the Mental Health Act 1983. She consistently expressed that she wanted to have a natural birth, or, if required in an emergency, to have a caesarean section under local anaesthetic. Medical evidence was clear that C would be very difficult to manage safely during the stress of a natural birth, for example she was unable to tolerate fetal heart monitoring for more than 20 minutes.

• Previous wishes will not always be determinative. The Court is still prepared to take a safety-first approach, even where that is more restrictive, when it is backed by consistent medical evidence and where the previous wishes demonstrated limited or no insight into what they would involve.
• The Court is more prepared to authorise intervention where the situation is likely to be dynamic and require decisions to be made in an ever-changing situation, possibly at short notice, such as when giving birth.
• The case balanced the obligation to use the least restrictive method possible with the risks to C of a natural birth.

Case

Cambridge University Hospitals NHS Foundation Trust v BF [2016] EWCOP 26

Topics

• Mental capacity
• Fertility
• Therapeutic hysterectomy
• Serious medical treatment

Practical Impact

• Advance capacitated expressions of consent to treatment will be given a very high weighting by the Court.
• The Court is willing to act to save life where medical evidence is strong, even where that involves severe restrictions upon the mother in question and contradicts her express and clear wishes.

Summary

The Court made declarations that BF now lacked the capacity to consent to or to refuse the hysterectomy which was deemed to be the treatment required; and it was in BF's best interests to undergo the proposed surgery. This was despite BF's clearly expressed view that she did not want the surgery and that she wanted to be able to have children. Key factors in making the decision included the sanctity of life, BF's previous consent to the surgery during a time at which she was considered to have capacity in that regard. As part of the balancing exercise the judge considered that the loss of the ability to have children was outweighed by the medical evidence that the cancer would kill BF within 6 months, so her likely prognosis without treatment precludes that in any event.

BF was diagnosed with paranoid schizophrenia. Doctors were concerned that she had ovarian cancer and advised that she needed surgery. BF was told that the surgery would involve a total abdominal hysterectomy, which would mean the loss of her fertility. Despite her desire to have children, BF initially consented to the operation. However, following a psychotic episode in theatre, it was cancelled. Since that time, BF's psychosis led her to doubt that she had a tumour and, despite compelling evidence to the contrary, she had an entrenched view that she would not experience any harmful consequences by not having the operation.

• The urgency of the case is crucial. Here there was a prospect that BF would regain capacity (and thus be able to make the decision without the Court's intervention) but that would almost certainly not be within the limited timescale needed for effective treatment. This emphasises the importance of acting quickly in such cases.
• Previous (capacitated) expressions of consent to the surgery were given a higher weight by the court than BF's current clear assertions that she did not want the surgery.
• A key factor was that without surgery the likelihood was that death would occur in a timescale much shorter than that required to carry a baby to term. Within that context, the chance of continued life outweighed the permanent loss of fertility.