The Court of Protection made orders allowing a hospital trust to perform a caesarean on a woman with bipolar, against her wishes.
There is a legal assumption that everyone is able to make their own decisions about their life. However, when people lack the capacity to understand information and make decisions about their life, decisions can be made on their behalf. Where the decision that need to be made have very serious consequences, or where there is disagreement about what should happen, the Court of Protection will be asked to make the decision.
The Court can only make decisions if someone lacks capacity to make them for themselves. If there is reason to believe that someone lacks capacity, but there needs to be more investigation, the Judge can make a temporary or interim decision that someone lacks capacity. This means the court can start making decisions about them.
In July 2019, a heavily pregnant woman went to her hospital. She was several days overdue and the staff at the hospital believed the baby was at high risk of being still born.
One of the doctors explained this to her and advised that the baby needed to be delivered, ideally by caesarean section. The woman said that she wanted the baby to be born alive but she did not want a caesarean or any other intervention.
Following this meeting, her capacity to make decision about interventions in her pregnancy was assessed. A consultant psychiatrist found that her mental ill health was affecting her decision making about the pregnancy and she did not have capacity to make a decision about having a caesarean.
The hospital made an urgent application to the Court of Protection on the same day the woman came to see them. A telephone hearing was held in the early hours of the next morning and the woman had to represent herself because there was no out of hours lawyer to represent her. She told the judge that she did not want to have a caesarean but did want her baby to be born safely. The judge ordered a hearing for the next morning.
At the second hearing, the woman had a lawyer. Through her lawyer, she told the Court that she didn’t want a Caesarean but was willing to have medical intervention that would start or induce her labour so she could deliver naturally. Her lawyer told the judge that there was not enough evidence that the woman lacked capacity to make decisions about the Caesarean. The lawyer said that this meant the Court could not make the decision for her.
The Judge did not agree with the woman’s lawyer. They said there was reason to believe that she lacked capacity and made an interim decision that she wasn’t able to make decisions about the Caesarean. The judge then authorised the hospital to perform a Caesarean if it was necessary.
Happily, the next day the woman had her baby without the need for a Caesarean section.
Read the judgement here - Guys and St Thomas' NHS Foundation Trust v X  EWCOP 35
The assumption of capacity is a fundamental principle of law and it is worrying that the Court is able to make urgent decisions about serious medical operations before it is clear that the person is unable to make that decision themselves. Even where a person has been assessed to lack capacity, we think that their wishes and feelings should be the primary consideration when making decisions on their behalf.
Women don’t have to follow medical advice when having a baby and some may chose a course of action that brings a higher risk to them or their baby. We are concerned about the implications this decision might have for woman with mental health problems who do not agree with their doctors about the best way to have their babies