Court Authorises Care Plan for Pregnant Woman Who Lacks Capacity

The Court of Protection has granted declarations sought by two NHS trusts that a pregnant woman lacked capacity and that a care plan which provided for the possibility of her undergoing a caesarean section was in her best interests.

The woman was pregnant with her second child. She had been diagnosed with paranoid schizophrenia and was experiencing an acute psychotic episode characterised by paranoid delusions, hostility and agitation. She was being detained under Section 3 of the Mental Health Act 1983. A week after being detained, she had attended an antenatal clinic at which she was reported to have understood, retained, weighed up and communicated her preferences for the birth and was assessed as demonstrating capacity for her obstetric decision making. She had said that she wished to have a vaginal birth and that she would prefer hormone induction. A detailed care plan was devised with the aim of following her wishes insofar as that was consistent with her best interests.

At a subsequent review, however, she had failed to answer a question about whether she understood that, in an emergency, a change to the plan of induction and vaginal birth, such as a caesarean, might be needed. A consultant obstetrician confirmed her opinion that the woman lacked capacity to make decisions about the care plan or any decisions relating to the birth, and it was very unlikely that she would regain capacity prior to the proposed delivery date.

The NHS trusts responsible for her obstetric care and her mental health care applied to the Court for declarations that she lacked capacity to make decisions about her obstetric care. If those declarations were made, they sought further declarations that it was in her best interests to deliver the baby by caesarean section if, at any stage during her labour, continuing the induction of labour was no longer safe.

The Official Solicitor, who represented the woman, accepted the trusts' position regarding capacity. The Court agreed that the evidence demonstrated that, over a sustained period of time, the woman had lacked capacity to make decisions regarding her obstetric care.

The Court recognised and weighed in the balance the woman's consistent wish to have a vaginal birth and not a caesarean section. That was a very important consideration and was set out in the care plan. However, the Court also had to weigh in the balance that in circumstances where there was an immediate risk to the woman, staff or others there might be no alternative but to proceed with a caesarean section under general anaesthetic. The Court was satisfied that the care plan was in her best interests.