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Published On: May 17, 2021 | Blog | 0 comments

Planning for a birth and fluctuating capacity

In the recent case of East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18, the Court of Protection was required to consider the issue of fluctuating capacity in a maternity case. “P” was a 26 year old wo who suffered from anxiety, depression and acute agoraphobia. P had gone into labour at home 72 hours earlier. However, the labour became obstructed. P required urgent obstetric treatment and a possible emergency caesarean section in hospital. However, P would not agree to this. An urgent application was therefore made to the Court of Protection by the NHS Trust so that the court could decide whether P had capacity to make this decision and, if she lacked capacity, whether it was in her best interests to undergo the recommended hospital procedure. The Official Solicitor acted as P’s litigation friend and made recommendations to the court regarding P’s best interests.

When deciding whether P had capacity to make this decision, the court had to consider the Mental Capacity Act 2005.  This Act is designed to protect and empower people who may lack mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.

The Mental Capacity Act includes the following provisions:-

  1. A person must be assumed to have capacity to make decisions themselves, unless it is proved otherwise.
  2. Wherever possible, people should be helped to make their own decisions.
  3. A person is not be treated as lacking capacity to make a decision just because they make an unwise decision.
  4. A decision made for someone who lacks capacity must be in their best interests.
  5. Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms.

How is mental capacity assessed?

The Mental Capacity Act sets out a two stage test of capacity:-

  1. Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors (such as alcohol or drug use)?
  2. Does the impairment mean that the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate over time, ie someone may have capacity at one point in time, but may not be able to make the same decision at a later point in time. Where appropriate, people should be allowed time to make a decision themselves.

A person is unable to make a decision if they cannot understand the information relevant to the decision, retain that information, use or weigh up that information as part of the decision-making process.

The Mental Capacity Act applied to the case of East Lancashire Hospitals NHS Trust v GH

P was assessed as having capacity with respect to decisions concerning the management of her pregnancy and the birth up until the previous afternoon. In particular, P agreed to attend hospital in the event that this was required during the course of her labour.  It was only in the latter part of the day that it became clear that P’s anxiety and agoraphobia had dominated her decision-making.  A subsequent capacity assessment revealed that P lacked capacity to decide whether to be admitted to hospital for obstetric treatment and a possible emergency caesarean. MacDonald J concluded that P’s current agoraphobia and anxiety was preventing her from using or weighing information in deciding whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. The judge was satisfied that P’s agoraphobia and anxiety had overwhelmed her ability to use and weigh the information required to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. The judge was also satisfied that P’s inability to use and weigh information was clearly as a result of an impairment of, or a disturbance in the functioning of, P’s mind or brain, and that there was no evidence to suggest that P was likely to regain capacity to make the decision.

  1. The Court of Protection therefore concluded that it was in P’s interest to be taken from her home to hospital by ambulance, with the use of reasonable force if necessary, and for the medical and midwifery practitioners attending P to carry out such treatment as may in their opinion be necessary for the management of P’s pregnancy and delivery, as outlined in the obstetric management plan. In reaching this decision, the judge gave significant weight to the fact that, at a time when all involved accepted that P had capacity, she had indicated that whilst she wished for a home birth, she agreed to be admitted to hospital should that be required. The judge was of the view that this was cogent evidence regarding her wishes and feelings at a time when P had capacity with respect to the decision being considered by the court.
  2. The judge considered the risks involved in admission to hospital, particularly risks associated with general anaesthetic and increased risk of bleeding associated with caesarean sections. However, he was of the view that those risks were outweighed by the risks to P (and to the health of her unborn baby) of a home birth in the particular circumstances. The judge also noted that P’s relatives and family supported her going into hospital. In addition to this, the Official Solicitor, as litigation friend for P, agreed that it was in P’s best interest to be admitted to hospital for obstetric and postnatal care.

It should be noted that before the judgment was formally handed down,  P gave birth to a healthy baby at home in advance of the arrangements authorised by the court being implemented. The  case highlights the importance of advance care planning to ensure that the wishes of P regarding pregnancy and birthing arrangements (including what should happen in an emergency) are accurately recorded. Such wishes can then be relayed to the court, in event that someone loses capacity during the course of their pregnancy, and the court is required to make a best interests decision for P and their unborn child.

Nicola Gunn is a partner in the Court of Protection and Family Department. If you require advice on matters raised in this blog, please contact Nicola on 020 7940 4057 or

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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