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Capacity and best interests: agoraphobia, pregnancy and transfer to hospital

Thursday 1 July 2021

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Factual Background

This case concerned a 21-year-old woman who was pregnant with her first child.  She had a diagnosis of a ‘severe form of agoraphobia’.  She had only left her home on a very few occasions over the last several years. There was concern that she may not be able to leave the house during the birth even if it became a medical imperative. Two hospital trusts applied to the court for endorsement of the care plan (annexed to the judgment) which provided for the mother giving birth in hospital before the estimated date of delivery.

Judgment

The hearing was in open court in a courtroom but the family and medical witnesses attended by video link.  Any member of the public wishing to attend could attend the court in person.

Holman J made it clear that this was not a case about the advantages and disadvantages of a home birth and identified the nub of the case as being the potential difficulty of transferring this particular mother to hospital if a medical emergency arose and if she was so overcome by her agoraphobia that she would not go. These circumstances could potentially occur out of hours when far fewer resources might be available than if the mother were taken to hospital, not in labour, in a planned way so as to give birth there [§11].

Holman J agreed with the experts that the mother lacked capacity to make decisions about whether her baby should be born at home or in hospital and lacked litigation capacity.  The Official Solicitor also agreed with the court’s declarations in respect of capacity.

The court referred to the recent judgment of MacDonald J in East Lancashire Hospitals NHS Trust v. GH [2021] EWCOP 18 where a woman who had acute agoraphobia went into labour at home, needed an urgent transfer to hospital for a caesarean section and refused to go to hospital. The matter was heard after hours and the judge made an order declaring and authorising that the mother could, in her best interests, be transported to hospital using reasonable and proportionate force if necessary. A postscript to the published judgment delivered three days after the event, describes that, in the event, the labour had begun to progress quickly after the hearing, and the baby was in fact delivered at home before the arrangements authorised by the court could be implemented.

Holman J said at paragraphs 16 - 17:

“It is, of course, possible to draw conflicting messages from that case and judgment. It could be said to illustrate that, even when doctors consider that there is an acute emergency, it may yet pass and the birth may take place at home without (apparently) long-term damage. It could be said to illustrate the capacity in some situations for a hospital to obtain an urgent hearing and an order, even in the middle of the night, when an emergency has actually arisen. But the hearing will have taken time to set up, and itself lasted nearly two hours, far too long if there had been what Professor Walker described as “a blue light ambulance emergency”.

17.  Overall, the case illustrates, in my view, the need to anticipate problems of this kind and to face up to them as best one can in advance, even if that involves speculation and/or reliance upon statistics. In my view, therefore, it was entirely justifiable and appropriate that the hospital trusts in the present case have made the present application. Amongst other advantages, it has enabled a thorough and informed investigation to take place, as well as a fair and transparent hearing, lasting many hours, in which to test out the issues and the evidence, all of which is impossible in any kind of emergency out-of-hours situation. Further, the mother herself has been able to participate, and has participated, throughout the hearing, at a time when she is not in labour, pain or distress. “

Holman J adopted the applicable law as set out in East Lancashire Hospitals NHS Trust v. GH.

The court accepted the statistics on risks of home birth, the numbers requiring transfer to hospital and the evidence of the medical witnesses that if there was a medical emergency which required an urgent transfer to hospital, ‘a blue light emergency’, during a home labour, that based on the mother’s known agoraphobia and her almost total refusal ever to leave her home,  she may refuse to leave her home or to be transported to hospital with, potentially, very grave consequences for herself and/or her baby. The experts did not predict that there would be such an emergency but based on the statistical evidence there was a possibility that there might be such an emergency.

Holman J agreed with the experts and the treating doctors that it was preferable, and in the overall best interests of this particular mother and her baby, that she should give birth in hospital in a planned way around the estimated date of delivery, but before she went into spontaneous labour.

It was agreed by all parties and the Official Solicitor that the court should make a declaration that it was in the best interests of the mother to be transferred to the hospital for a planned delivery and the care plan provided that she would be attended to by an experienced community midwife and a community psychiatric nurse familiar to her, as well as by her partner and her mother.

It was also agreed that it was in the best interests of the mother that sedation may be administered to her to help calm her and help her cope with the transfer, and that all forms of reasonable encouragement and persuasion could be used, as well as light physical guidance.

The issue which was not agreed between the hospital and the Official Solicitor was the extent of additional force or restraint that could lawfully be used on a pre-planned transfer and admission if the mother was not actually in labour, and no actual acute medical emergency had actually arisen. The Official Solicitor’s position was that in anything short of an actual current emergency, it was not justifiable or proportionate to use force or restraint for a pre-planned admission.

The hospital trusts wanted to include authorisation in an order, and attached care plan, for the use of reasonable force (but always the minimum necessary) even in the case of a pre-planned, non-emergency admission.

The medical evidence was that this was a finely balanced decision. Both psychiatrists agreed that, if force were used, that may have a damaging psychological effect on the woman.

On behalf of the Official Solicitor, it was submitted that the known risks from the use of force or restraint outweigh the more speculative and statistical risks of a home birth that may then require an urgent transfer to hospital.

Holman J sanctioned the use of restraint and said this at paragraph 31:

Having very anxiously weighed and considered all the factors in this case, I am, on balance, satisfied, albeit in disagreement with the Official Solicitor, that it will be in the overall best interests of this mother if - if the necessity for it arises on the day - some trained and professional force and restraint are used to transport her to hospital, and I will so declare. The declaration will incorporate the final “care plan for delivery” of the baby, which has been amended by me and counsel during the course of the hearing. An official transcript will be made as soon as possible of this judgment, and an anonymised version of the care plan and the order will be annexed to it.

A postscript to the judgment, added at a later date, sets out that the mother went into spontaneous labour at home earlier than her due date, received 2 mg of Lorazepam orally and although initially resistant was guided by staff and family into the ambulance to travel to hospital. No restraint was used, and the mother gave birth in hospital without complications.

Comment

The case has attracted a great deal of comment and criticism.  It has been well documented on the website of the Open Justice Court of Protection Project including comments from members of the Perinatal Mental Health Midwives UK Forum setting out their concerns about forced hospital admissions and the risks of psychological harm to the mother and trauma causing damage to the mother’s ability to bond with her baby. They highlight that the court did not hear any evidence from a specialist perinatal midwife and that pre-birth planning for cases that might be heading to court could take advantage of the wealth of experience from midwife-led care in complex cases.

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