NHS Trusts v C (Medical Treatment and Reporting Restrictions Order) (1) [2016] EWCOP 17

​This case concerns an application by the NHS Trusts (‘the Trusts’) to obtain an order to permit them to undertake various steps and measures in respect of the Patient’s (‘P’) forthcoming labour; and for a reporting restrictions order.

The Facts
P has a long standing bipolar affective disorder. She is in the late stages of her pregnancy which has led to a relapse in her mental condition. P is currently detained under section 2 of the Mental Health Act 1983.  

P had indicated that she wished to have a natural delivery. It was clear to the Trusts that this would be difficult to manage safely.

The court found that P lacked the capacity to make the decision about medical interventions.

P was in a fragile state at the date of the hearing. The prognosis was that P’s mental health in the short term would probably recover following the delivery of the baby. In the long term she is expected to remain stable with appropriate treatment, but is likely to suffer relapses if she is non-compliant with her medication.

The Trusts
The consultant obstetrician (‘CO’) gave evidence on behalf the Trusts stating that P’s inability to remain still and her unpredictable behaviour would make it difficult and a risk if a caesarean under a general anaesthetic were not given. P was too acutely unwell to manage labour and bring about safe delivery of the baby whilst keeping herself safe.

The Trusts presented the pros and cons of the differing modes of delivery. The CO concluded that the only safe option for P and the unborn baby was an elective caesarean.

P’s psychiatrist (‘CP’) gave evidence as to P’s capacity and concluded that she lacked capacity.

The Trusts concluded that P would not tolerate a natural birth with the continual monitoring and physical examinations required. Due to P’s current medication there would need to be a continual monitoring of the baby’s heart beat; only a few days prior to the hearing P could hardly tolerate less than 20 minutes.

P’s wishes
P wished to have a natural birth with minimal intervention, unless there was an emergency; then she would have an emergency caesarean if she had to.

Family’s views
Although P’s mother and P’s partner wanted P to deliver the baby in accordance with her wishes, they recognized the difficulties and risks and wanted to keep P and the baby safe.

The Law
The court considered sections 1,2 and 3 of the Mental Capacity Act 2005 (‘the Act’).

It considered (1) NHS Trust (2) NHS Trust v FG (By Her Litigation Friend, the Official Solicitor) [2015] 1 WLR 1984 and the guidelines for applications in obstetric cases; and (1) The Mental Health Trust (2) The Acute Trust & (3) The Council v DD (By her Litigation Friend, the Official Solicitor [2014] EWCOP 11 and the courts approach to best interests of P and how these are factored into the P’s wishes and feelings.

The court considered Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms when it considered the RRO application, and the House of Lords case of Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593.

Decision
The court made the declarations sought. Having in mind the least interventionist approach the court concluded that all options had been carefully considered but that the care plan of an elective caesarean met the best interests of P.

The court made the RRO until after the birth because even with anonymised reporting of the proceedings, P could still be identified which would further risk her mental health.

Discussion
In this case the Trusts had considered and balanced all the other modes of delivery and considered the various risks to P and the unborn baby. The Official Solicitor who represented P throughout, wished to explore some evidence orally. After this the Official Solicitor did not oppose the applications sought. 

Read the full text of the judgment on Bailii