Legal Update – Obstetric Care
Pregnant women who lack capacity: when is court intervention required for the provision of obstetric care?
In the context of obstetric care it is not uncommon for healthcare professionals to encounter pregnant women whose lifestyle or medical choices appear to be diametrically opposed to the best interests of their unborn child. Yet, until the moment of birth, a foetus does not have a legal identity separate to that of its mother. Unless the woman lacks capacity to make decisions about her obstetric treatment, the law requires that her personal autonomy is respected even if her choices and decisions are likely to have a detrimental impact on her own health or that of the unborn child. The Mental Capacity Act 2005 makes clear that a person is not to be treated as lacking capacity to make a decision merely because they make an unwise decision.
In the context of the delivery suite a woman who has capacity is entitled to refuse medical interventions such as caesarean section or instrumental delivery even if that refusal puts her own life or the life of her unborn child at risk. When this situation arises, it can be extremely distressing for healthcare professionals who inevitably feel powerless to intervene despite an overwhelming professional and ethical compulsion to do so. To impose such intervention in the face of a competent patient’s unequivocal refusal can give rise to the risk of criminal, civil or disciplinary proceedings for the Trust and its staff.
The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. It is a fundamental principle of the Act that a person is presumed to have capacity to make a decision unless it is established that capacity is lacking. Therefore, when a pregnant woman is making a seemingly irrational decision about her obstetric treatment, particularly where that decision threatens her health or that of her unborn child, it is important to undertake a capacity assessment. Capacity assessments are decision specific. So, whereas a patient may have capacity to make a decision about whether to have pain relief in labour she may simultaneously lack capacity to decide whether to agree to a caesarean section.
Where a pregnant woman is assessed as lacking capacity to make a particular decision about her obstetric care, then healthcare professionals can make that decision on her behalf providing they act in her best interests. The least restrictive option should always be considered.
Where concern arises about a pregnant woman who lacks, or may lack, capacity and who is refusing care deemed to be in her best interests (or the interests of her unborn child) it is important to seek legal advice in case a Court of Protection application is required.
In the case of NHS Trust & others v FG  the Court of Protection issued important guidance on when and how applications should be made in obstetric cases where the woman lacks (or may lack) capacity . The Court identified 4 categories of cases in which a court application should be made:-
- Category 1 – where the proposed intervention amounts to ‘serious medical treatment’ i.e. those cases where there is a fine balance between the benefits and the risks of the proposed treatment/s; or where the proposed treatment, procedure or investigation would be likely to involve ‘serious consequences’ for the patient.
- Category 2 – where there is a real risk that the patient will be subject to more than transient forcible restraint;
- Category 3 – where there is a serious dispute as to what obstetric care is in the patient’s best interest whether as between the treating clinicians or between the clinicians and the patient herself.
- Category 4 – where there is a real risk that the patient will suffer a deprivation of liberty which, in the absence of a court order authorising it, would be unlawful.
The Court specifically identified that the following situations require court application, namely, those cases in which delivery by caesarean section is proposed and either:-
- the merits of the procedure are finely balanced; or
- the procedure is likely to involve more than forcible restraint
The Court stressed the importance of early identification of women in respect of whom a court application may be required so that capacity assessments can be undertaken and obstetric care plans formulated as to how obstetric care can be delivered in their best interests.
Where a case falls into one of the four abovementioned categories the Court directed that an application should be made at the earliest opportunity and, save in the case of a genuine medical emergency, any court application should be made no later than 4 weeks prior to the expected date of delivery. Therefore it is crucial that a Trust seeks legal advice as soon as such cases are identified so that appropriate legal steps can be taken if so required.
The recent case of A University Hospital NHS Trust v CA  serves as a cautionary reminder to Trusts not to delay in making court applications in obstetric cases. This case involved a young woman with autism and learning disability who had a fear of hospitals and medical intervention. She was assessed as having little, if any, understanding of what labour and child birth involved and wanted to deliver her baby at home without medical assistance. The view of treating clinicians was that delivery by planned caesarean section was in her best interests. Unfortunately the Trust failed to make an application until two weeks prior to the woman’s due date. Consequently the Trust received a stern reprimand from the Judge:
‘This extremely unsatisfactory situation has been brought about by the failure of the Trust to start proceedings at an early stage. In this respect, the Trust has manifestly failed to comply with the guidance [in FG]…That guidance is compulsory reading for all professionals involved with such cases.’
The judge reiterated the importance of Trusts and their legal advisors following the Court of Protection guidance in FG stating:
‘Hereafter, all NHS Trusts must ensure that their clinicians, administrators and lawyers are fully aware of, and comply with, the important guidance given [in FG] in respect of applications of this sort.’
This case serves as a useful reminder to Trusts to ensure that their midwifery and obstetric staff are familiar with the guidance in NHS Trust & others v FG  and are instructed to seek early legal advice when such cases are identified. This will enable a timely court application to be made if appropriate and avoid the Trust facing the wrath of the Court of Protection judiciary and any accompanying adverse media coverage!
If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or email@example.com