The recently published North Middlesex University Hospital NHS Trust & Anor v MB [2023] EWCOP 23 concerned a 26-year-old woman, ‘MB’ who was 37 weeks pregnant and shortly due to give birth to her first child. MB was detained in hospital pursuant to section 3 of the Mental Health Act 1983 and had initially been admitted on 14 March 2023.
An application was issued by North Middlesex NHS Trust and Barnet, Enfield, and Haringey Mental Health NHS Trust (‘the Trusts') on 16 May 2023 for the court to authorise a birth plan to ensure the safe delivery of MB’s baby, which included a planned caesarean section should it become necessary.
Details about MB’s background were limited, but it appeared that she had previously been in the care system after suffering severe neglect as a young child and had little involvement with her parents at the time of the application. The father of her unborn child wasn’t known but it was understood that she was not in a relationship with him.
She was not previously known to mental health services and initially presented at hospital on 14 March 2023, stating that she was pregnant and reported hearing voices. She was detained under section 2 of the Mental Health Act and admitted to a psychiatric ward whilst experiencing paranoid delusions. MB managed to abscond on two occasions and was once returned “heavily drunk and thought disordered” and found to be “floridly psychotic” upon examination after stopping her medication.
Following the Trusts’ application being issued, MB’s capacity was assessed whilst on the hospital ward and “had no insight into why she was in hospital and told Dr M that it was because she had stomach-ache, and this was the only place which had a bed available”.
It was agreed that MB lacked mental capacity to decide how her unborn child should be born, although she was able to communicate that she would prefer to have a spontaneous vaginal delivery but agreed with the plans for delivery by a planned caesarean section on the recommendation of professionals treating her.
When a person lacks mental capacity and a decision needs to be made, it must be made for them in their best interests. If a person has been assessed as having capacity to make the decision, a best interests decision cannot be made for them – the individual has autonomy to make the decision themselves.
Given that the decision to be made concerned, as noted by the Judge, “proposed surgical intervention and the administration of anaesthesia” which “would potentially represent an interference with fundamental human freedoms and the right to choose whether to consent to serious medical treatment”, an application was issued by the Trusts for the court to authorise the proposed course of treatment in MB’s best interests.
The final version of the birth plan that the court was asked to authorise carefully reflected the wishes expressed by MB during the course of the proceedings. A plan to carry out a planned caesarean section was “superseded by a revised plan which anticipate[d] a vaginal waterbirth in accordance with the views expressed by MB on 18 May when she was considered to be expressing capacitous views”. The plan also included detailed plans as to how MB would be transferred from her ward to the maternity unit if she were to go into spontaneous labour and sought to authorise the administration of a general anaesthetic as a last resort if required during the course of a caesarean section, or if MB expressed a preference to undergo a general anaesthetic instead of a spinal.
The judge in MB’s case, The Honourable Mrs Justice Roberts, approved the application by the Trusts and stated “I regard the safe delivery of [MB’s] child as an intrinsic factor in a consideration fo her own best interests. The current iteration of the birth plan which I am being asked to approve in this context is aligned with MB’s own expressed wishes”. She also stated:
“I accept that cases involving caesarean sections offer particular challenges to courts who must intervene to preserve a fine balance which exists between preserving what has often been referred to as “the inviolability of a woman’s body”, a vital aspect of her fundamental freedom, and the legal protection sought by those responsible for her care and that of her unborn child when their safety and wellbeing requires medical intervention which, without her informed and capacitous consent, would be unlawful”.
At the time of the plans being authorised, MB was aware that her baby would need to be transferred to neonatal care due to the medications she had taken in the late stages of her pregnancy, which were likely to cause the baby drowsiness and affect its ability to feed, but would be taken to the unit to visit the baby “unless she [was] either medically unfit” or “in a state of florid psychosis”.
Both the barrister acting on behalf of MB (by her litigation friend, the Official Solicitor) and the judge were, however critical of the timing of the Trusts’ application, by which time MB had been a patient at the hospital for over two months. The judge expressed that the application made by the Trusts was “not a case of genuine medical emergency” and “could have been issued much sooner” when professionals anticipated that an application to court to authorise the plans would be required, in accordance with case law guidance previously set out in NHS Trust 1 and NHS Trust 2 v FG [2014] EWCOP 30, [2015] 1 WLR 1984.
If you need advice about a best interests decision or dispute concerning a vulnerable adult, please do not hesitate to contact us on 01616 966 229.
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