North Middlesex University Hospital NHS Trust v SR [2021] EWCOP 58

At an urgent hearing, the Judge was required to determine:

  • Does SR have capacity to make decisions about her care in pregnancy and birth;
  • Is there a risk that she will lose that capacity;
  • Is it appropriate to make a declaration, contingent on her losing capacity, identifying the medical treatment that is in SR’s best interests;
  • Is it appropriate to make an order permitting the use of physical and chemical restraint so that if the need arises, effect can be given to the treatment declaration.

SR was in her mid-thirties and about 36 weeks pregnant and had a strong desire to have a caesarean delivery. She was under the care of the midwifery and obstetric unit as well as under psychiatric care at a neighbouring mental health NHS Trust. In SR’s younger years, she sadly suffered significant trauma in the form of sexual abuse, her mother had died when she was 11 years old and her father was a drug dealer and was in prison. She was diagnosed at around 26 years of age with paranoid schizophrenia and she had consistently misused drugs since her early twenties.

During the course of her pregnancy, SR was reunited with her extended family and 2 of them were named as her birth partners. However, following various appointments SR had attended and her actions during and following them, there was a real concern about SR’s drug taking and the risks involved. She was also extremely afraid about dying in childbirth and continued to be fixated on getting drugs. If SR went into labour early, whilst under the influence of drugs, there was a real risk in the delay in SR seeking medical help, if at all. Due to her use of crack cocaine which could narrow the arteries and increase blood pressure, it was agreed that a caesarean was the safest option for her. She also wished for a spinal block instead of a general anaesthetic so that she could be awake throughout which would make her feel more in control and safer.

There was a planned caesarean for SR for 4 days after the urgent hearing and evidence was heard from the Consultant Psychiatrist and SR’s Midwives. SR had been assessed as having capacity to make decisions about the birth, however, there was concern that she might lose capacity on or before the planned caesarean date.

Counsel for the Applicant Trust submitted that the appropriate test was whether ‘a real risk’ existed that P would lack capacity at the relevant time.

The Judge found that at the time of the hearing, SR did have capacity to make decisions regarding her care in pregnancy and birth. The Judge however, found that she was not in a position to conclude whether a threshold test was necessary and that Counsel for the Applicant Trust had been unable to reveal any authority which would assist.

The Judge also found that the bespoke birth plan which had been very carefully made for the delivery in 4 days’ time maximised ‘the chance of SR having the alert, calm, comforted experience with her chosen birth partners that she wishes and which is in her best interests. On any later date, the theatres may be busy causing delay, the staff she knows may not be on duty, family members may be uncontactable, and the prospects of restraint and an unwanted general anaesthetic being required will increase. Second, if the baby is not delivered on Monday, the pregnancy will continue and the chance of SR going into spontaneous labour will increase. Labour is likely to exacerbate her already extreme fear of dying in childbirth and, if labour is at an advanced stage when help is sought, a caesarean may not be an option. Third, the risks of pregnancy increase with further drug use. The foreseeability of circumstances in which restraint may be required to achieve the delivery that is in SR’s best interests, also means that there is no less restrictive option available’. It was for these reasons that the Judge made the declarations sought.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Christine Marsh here

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