Re CA (Natural Delivery or Caesarean Section) [2016] EWCOP 51 (08 December 2016)

Posted on Friday, April 28th, 2017

This was a Court of Protection decision concerning a 24-year old pregnant woman (CA) with a diagnosis of autism and learning disability, and the question of how she should deliver her child.

The NHS Trust sought a declaration and order that it was lawful and in CA’s best interests that she should undergo a Caesarean section, if necessary using force in a way that deprived CA of her liberty. CA was refusing any interventionist health care in respect of her pregnancy and objected to a Caesarean section, stating that she wanted to give birth at home.

Mr Justice Baker was highly critical of the NHS Trust for the late timing of the application (less than a fortnight before CA was due to give birth).

Background

CA was born in Nigeria and travelled to the UK in 2007. It was claimed that CA had been diagnosed as being on the autistic spectrum, although no medical records confirming such a diagnosis were produced.

It was known that, during her childhood, CA had experienced one, or possibly two, episodes of cutting. The first episode involved cuts to her abdomen from which she still had superficial scarring. It was thought that CA would have been conscious and restrained when these cuts were made. CA’s mother also reported that CA had undergone genital cutting. This could not be confirmed as CA refused a vaginal examination but it was thought that she had experienced Type 1 Female Genital Mutilation.

In 2014, CA moved into a supported living placement, where she was known to social services and received 20 hours of support each week from Autism Care. At the beginning of July 2016, she visited her parents who suspected she was pregnant and the GP confirmed that this was indeed the case.

CA was referred to the local hospital and assigned to the care of a consultant obstetrician and midwife. The midwife established a relationship with CA, but CA remained largely uncooperative with medical examinations, and refused to provide blood samples or undergo gynaecological examinations.

CA demonstrated very little, if any, understanding of what labour and childbirth would involve. She was adamant that she wanted to deliver the baby at home and did not expect the process to involve pain or bleeding.

At the beginning of November 2016, CA became more unsettled. Medical staff became concerned about her condition and wanted to admit her to hospital, but she declined. It was only at this point that the NHS Trust made their application to the court.

Outcome

The late stage application meant that evidence relating to CA’s capacity was limited. Her medical records were not available and she was only examined by a consultant psychiatrist on the day before the final hearing.

The consultant psychiatrist, who had considerable experience of autism and a special interest in autism in women, concluded that CA was autistic and had a learning disability. The Official Solicitor was not persuaded about the diagnosis of autism but accepted that there was sufficient evidence to support the diagnosis of a learning disability and that this was sufficient to meet the diagnostic test.

Mr Justice Baker found that the evidence of the consultant psychiatrist was persuasive. He found that CA lacked the capacity to understand, retain, weigh and use information so as to conduct proceedings, and also so as to make decisions as to medical treatment, in particular as to the delivery of her baby.

In determining what course of action was in CA’s best interests, Mr Justice Baker took account of the past trauma CA had suffered as a result of the cutting episodes. Whatever course of action was chosen, a shared concern of professionals was limiting the immediate and longer-term psychological impact of that action on CA.

Mr Justice Baker determined that it was “manifestly clear that the balance comes down decisively in favour of a planned Caesarean section”. He concluded that the Caesarean section should take place under general anaesthetic and approved the Trust’s plan for the use of procedures for controlling and restraining CA as necessary during the delivery, along with an assessment prior to the use of restraint.

An order was made incorporating

  1. A declaration that CA lacked the capacity to conduct the proceedings and make decisions about medical treatment;
  2. A declaration that it was lawful and in her best interest to undergo a Caesarean section at the Trust’s hospital on or around 17 November 2016;
  3. A declaration that it was lawful and in her best interests that restraint as set out in the Trust’s control and restraint plan be used as necessary to enable the treatment to be carried out;
  4. A declaration that arrangements for her care and treatment were lawful and proportionate notwithstanding that they entail the deprivation of her liberty, and
  5. An order that at all times before, during and after the birth, the Trust should take all and every reasonable step to minimise distress to CA and to preserve her dignity.

The full judgment can be read here.

If you have any questions about this piece of case law please contact Julie here.

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