X NHS Foundation Trust & Anor v Ms A [2021] EWCOP 17

This was an application for the Protected Party to be transferred to hospital for an elective caesarean section.

Ms A, a woman in her 30s, suffers from paranoid schizophrenia. At the time of the application she was 38 weeks pregnant with her third child. She was hoping for a normal vaginal birth at home.

Ms A’s diagnosis was made some 15 years ago and is a recurring condition. The severity of its symptoms are variable and can, to a greater or lesser extent, be controlled by medication.

In September 2019, Ms A stopped taking medication as she was well and wanted to try for another child. Various concerns about her mental health and functioning were raised in 2020 and, in early 2021, her consultant obstetrician was of the view that Ms A lacked capacity with regard to her mental health care and treatment, as she was demonstrating no insight into her previous illness. She also refused to engage with both mental health services and maternity health services.

On 22 January 2021, a Mental Health Act 1983 assessment was undertaken and it was concluded that Ms A was experiencing a relapse of her paranoid schizophrenia characterised by paranoid thinking, formal thought disorder, and a lack of insight. She was detained under section 2 MHA for a period of assessment.

On 26 January 2021, Ms A saw her consultant psychiatrist and her consultant obstetrician, and both clinicians concluded that Ms A lacked capacity to make a decision regarding her mental health and obstetric care. She declined any treatment for her mental health, and said that she wanted to go home and have her baby at home.

On 10 February 2021, when Ms A’s detention under section 2 was subject to the review of the First Tier Tribunal to which she was entitled, the detention was upheld. She stated very clearly that she would not take medication or engage with mental health services if she had a choice, and that she wanted to have her baby at home. She denied any history of mental illness. On 11 February 2021, Ms A was detained for treatment under section 3 MHA.

On 11 February 2021, Ms A had a scan which showed the baby was growing normally but the fetus was in the breech position and there were only two options: a vaginal breech birth or planned caesarean section.

The court considered all the circumstances, including Ms A’s views, and concluded that Ms A lacked capacity to conduct these proceedings, and to make decisions regarding the birth (mode of delivery) of her child, her obstetric care and post-operative management and, notwithstanding Ms A’s lack of capacity, that it was lawful, as being in Ms A’s best interests, for her to be transferred for an elective caesarean section, or indeed an emergency caesarean section, if it is considered clinically necessary to do so in order to prevent harm to Ms A.

The court also concluded that it was lawful, being in Ms A's best interests, for the staff to use reasonable and proportionate measures in accordance with the care plan, including those which involve physical or medical restraint, to facilitate her transfer.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Julie Fitzpatrick here

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