NEUTRAL CITATION NUMBER [2014] EWCOP 50 

IN THE COURT OF PROTECTION	      CASE NUMBER		 12598932 
BEFORE MR. JUSTICE HAYDEN
BETWEEN:

ROYAL FREE NHS FOUNDATION TRUST
Applicant

-	and –

AB (through her litigation friend, the Official Solicitor)
Respondent

______________

JUDGMENT

______________

1.	This is an application brought by the Royal Free NHS Foundation Trust in the late afternoon of 31 January 2014, in which the evidence was heard during the evening.

2.	It is a pressing application for in truth it concerns the life or death of a 32 year old woman, AB, who is 32 weeks pregnant and who is presently suffering from a protracted psychotic episode. She has a serious enduring psychotic mental illness.  She is of Sri Lankan origin. It is not entirely clear how long she has been living in the United Kingdom, but it seems to be between 5 and 6 years. 

3.	It has not been possible to examine the evolution of her psychotic condition and there is no extant diagnosis available to the court during the hearing of the application. It is thought by her treating psychiatrist that she probably has paranoid schizophrenia. On its own that would be a challenge for any individual but, in addition, she has type II Diabetes Mellitus, which has become increasingly difficult to control during the course of her pregnancy. Her psychosis leads her to eat irregularly and inappropriately. Inevitably she has hugely varying blood glucose and electrolyte levels  When assessing capacity this ongoing metabolic instability must be factored into a wider range of evidence.

4.	This is AB’s first pregnancy. I am told that when she has been well she has complied with the antenatal regime. It is clear that this is a wanted child. AB’s husband, Mr. AB, impressed me as a man who although plainly he has his own mental health difficulties, is devoted to his wife and highly committed to the baby she is carrying.

5.	The Trust seeks three declarations that:

a.	AB lacks capacity to consent to medical treatment, including to a Caesarean Section.

b.	AB lacks capacity to monitor and regulate her own intake of food and/or drink. 

c.	AB lacks capacity to decide whether to comply with her regime of diabetic medication.

6.	When the Trust commenced the application today it understood AB to be consenting to a Caesarean Section, albeit that she lacked the ability to evaluate the crucial features of the medicine which allowed her to reach a reasoned conclusion. AB’s husband was believed to be objecting to a Caesarean Section at this point, since he preferred that his wife should carry the pregnancy full term.

7.	In the words of Mr Sachdeva, it was AB’s husband’s objection, which the person determining the decision has to take into account under s4(7) Mental Capacity Act 2005, that led the Trust to make this application to court.

8.	In the event, when AB’s husband gave evidence, and he was taken through the process with his characteristic calmness and sensitivity, Mr. Sachdeva was able to secure the husband’s consent and true acquiescence. 

That however was not the end of the matter. It is ultimately for the judge to determine whether there truly is consent from the protected party. I am satisfied that there was not such consent.  I do not consider that AB had capacity to consent. When spoken to by Dr. Hughes, a trainee psychiatrist, at 5.30pm, contrary to her previously expressed position, she indicated that she did not wish to have a Caesarean Section. 

9.	AB has made at least two serious attempts at suicide in the period she has been treated by this Trust. I have no doubt that the second of these suicide attempts was a profoundly serious endeavour to take her own life having taken a major overdose of insulin on 5 January 2014. Since then AB has remained on the maternity ward. 

10.	I heard evidence from Miss Susan Tuck, Consultant Obstetrician & Gynaecologist. She has been a consultant since 1985, and specializes in complex obstetrics, the care of pregnant women with concurrent illness (for instance those who have had a kidney transplant or those with Diabetes Mellitus or mental illness). I found Miss Tuck’s evidence to be of the highest calibre. Her evidence was reflective, entirely free from dogmatism.  It was charactised by a real willingness to engage in questioning and open-minded analysis. Miss Tuck also has the inestimable advantage of having a professional relationship with this patient.

11.	This application began at 4.15pm, and I am delivering judgment ex tempore at 9.30pm. Miss Tuck stated that a Caesarean Section is urgent and she will be present during the procedure if the declarations are granted. This fact speaks of her commitment to and knowledge of this patient. Miss Tuck stated that the pregnancy was jeopardizing the optimal care of AB’s serious psychotic illness, which was proving increasingly dangerous to her life. Only this morning AB became distressed when her husband had to leave the ward to go to work, and she again threatened suicide.

12.	The driving imperative behind the application is to keep AB alive. She was expressing serious violent suicidal plans, and can only be treated effectively if she is no longer pregnant. Only then would one be able to assess the ambit and scope of her psychotic illness;  only then would the psychiatrists be able to optimize her medication, and only then would it be possible to nurse her on a psychiatric ward where she could be properly managed. The priority was to keep this woman alive.

13.	Miss Tuck gave evidence that delivery at 32 weeks would not in any way significantly compromise the foetus. 

14.	In evaluating whether this is the right course for AB it is important to note that some weeks ago AB raised for the first time the reality of the delivery of her baby. Looking back at her medical history it is easy to see that she had not been able to address this issue until relatively late in pregnancy. To Miss Tuck’s surprise and relief AB expressed the wish to have a Caesarean Section. She took the view that she simply would not be able to tolerate the pain of labour and that was the core premise of her reasoning.

15.	When I consider the declaration sought by the Trust I must consider the broad canvas of the medical evidence, which is complex. I must also consider the wider picture, for a protected party’s best interests are very rarely or never grounded exclusively in the medical context. The assessment of best interests involves to some degree having an understanding of the individual, so far as one can. I have heard that AB, when her condition is not florid, is a lively, personable and very intelligent young woman. Historically in Sri Lanka her mental illness was effectively medicated, and she obtained an arts degree at university. When mentally stable she has an insightful and intelligent understanding of her own Diabetes Mellitus condition. In that context I must consider the possibility of a Caesarean Section. This enables me with some comfort to draw the conclusion that if she was rationally able to put herself in this position AB would want an elective Caesarean Section. 
 
16.	I cannot at this hour do justice to the detail of the medical evidence, but I am satisfied that AB lacks capacity to consent to medical treatment. That was the view of Miss Tuck, who knows her well, but the Trust wisely sought the opinion of a consultant psychiatrist, a Dr. Katz in order to help determine her capacity. Unfortunately somewhere along the line, the line of communication had broken down, and although Dr. Katz had gone to great pains to assess AB’s capacity to engage with her diabetes medication, he had not assessed her capacity to consent to a Caesarean Section. AB’s own consultant psychiatrist was unfortunately not available and I believe is out of this jurisdiction. 

17.	Dr. Katz was nonetheless helpful because he very clearly described that at the moment this young woman had stopped eating and drinking: she said to help control her diabetes. Dr. Katz speculated that she might have been concealing her true motive – a covert, more subtle suicide attempt. There is no doubt that on an intellectual level she is quite capable of understanding what depriving herself of food and water will do. It is now 24 hours since she had anything to eat or drink and by this morning she was showing the consequences – in her levels of glucose, electrolytes, Sodium, Potassium, and Bicarbonate: the essential nutrients to the brain. When those nutrients reach a low level the brain is no longer being sufficiently nourished, resulting in disturbed consciousness and irrationality. It is only a matter of hours before AB’s brain would become insufficiently nourished, and she could die.  It is only by looking at this wider medical context that one can balance the decision about Caesarean Section.

18.	Dr. Katz stated that AB understands what a Caesarean Section is but responds simply by not answering the question.  Because she is psychotic she has no capacity to answer the questions regarding medication for her diabetes or a Caesarean Section – she cannot weigh up the evidence. 

19.	The decision to compel a Caesarean Section on an incapacitated woman who is mentally and physically ill is extremely draconian. It is a course of action that the doctors do not embark on lightly.  The lawyers also take it very seriously indeed. The combination of the evidence of Dr Katz and Miss Tuck went some way to reassure me that AB lacked capacity to consent to a Caesarean Section but because the action is so draconian, and in the absence of a specific psychiatric assessment of this particular issue, it did not seem to me that I would be compliant with the statutory framework to proceed without  further evidence. 

20.	I am extremely grateful to the Trust who obtained that evidence from Dr. Hughes, a Core Trainee 2 (previously he would have been described as a Senior House Officer) who had worked in psychiatry for only 1½ years. He regularly has to make capacity assessments, at the rate of 1 – 2 per week. He is a doctor who is very highly regarded by his colleagues. He conducted a capacity assessment ignorant of what had been discussed in court. He approached the task with professionalism and objectivity.

21.	Dr. Hughes worked through the criteria to be applied as follows:

a.	She can understand the core information – this chimes with what I have been told about AB as an individual and Miss Tuck’s own experience.

b.	She can retain it.

c.	She cannot at the moment weigh the evidence up, identifying the pros and cons of a particular course of treatment, or really think about it at all.  He said that when confronted with the balancing exercise she simply becomes both distressed and disengaged. That is a thread that runs through the evidence of the three different witnesses from three different disciplines and with differing levels of knowledge of the patient. Although she understood the factors relevant to the decision-making process she said that she would be fine to have the baby in 5 weeks’ time.

d.	She is able to communicate her decision.

22.	I am perfectly satisfied at this moment that AB is not able to make any reasoned evaluation of the advantages or disadvantages of a Caesarean Section. She has also lost the capacity to evaluate the importance of compliance with diabetic medication and the need for food and drink.

23.	I therefore grant declarations as follows:

a.	AB lacks capacity to consent to a Caesarean Section.
b.	AB lacks capacity to regulate her own diabetic medication.
c.	AB lacks capacity to monitor her intake of food and water.

24.	It is undoubtedly in her best interests that a Caesarean Section is undertaken and for her to be given diabetic medication and intravenous nutrition.

25.	The Trust had applied for a declaration that it was lawful for sedation to be used.  I hesitatingly grant this.  The Trust had also originally sought permission to use proportionate force. This was advanced on the basis that it was foreseeable that it might be necessary to use reasonable force. When the proposition was put to both Dr. Hughes and Miss Tuck in evidence, it emerged that AB has a history of her agitation being relatively easily assuaged, which was something which was consistent with AB’s husband’s evidence.

26.	The evidence necessary to support an order for the use of force must be very strong.  It is not present in this case and sensibly Mr Sachdeva has withdrawn this aspect.

27.	I have indicated that should the situation change I give permission for an urgent application to be made to me in the next 24 hours.

28.	I have been very much assisted as always by Miss Powell acting on behalf of the Official Solicitor, who has supported the Trust’s application.

Postscript

29.	I have been informed that AB has had a Caesarean Section and gave birth to a healthy baby boy. There was no need to consider restraint. When Miss Tuck went to see her, AB hugged her.