A NHS Foundation Trust v an Expectant Mother (Expectant mother suffering from agoraphobia)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 13 May 2021 |
| Neutral Citation | [2021] EWCOP 33 |
| Docket Number | No. COP 13748761 |
| Court | Court of Protection |
| Date | 13 May 2021 |
[2021] EWCOP 33
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Justice Holman
(sitting throughout in public)
No. COP 13748761
Reporting Restrictions Apply
Miss K. Gollop QC appeared on behalf of the applicants.
Ms S. Roper appeared on behalf of the Official Solicitor acting as litigation friend for the respondent.
(as approved by the judge)
This case concerns a pregnant mother who suffers from severe agoraphobia, such that she may not be able to bring herself to travel to hospital for the birth of her baby even if that became medically imperative. In this judgment, I will refer to her as “the mother”; to her partner, who is the father of the baby, as “the partner”; and to her own mother as, for convenience, “the grandmother”.
I have heard the whole case at the Royal Courts of Justice in London in an ordinary court room open to the public, and indeed, a journalist has attended from time to time during the hearing, and is currently present as I deliver this judgment.
The mother and her family live far away from London, as, of course, do the treating medical team. In the case of the mother, there is the additional feature that, because of her agoraphobia, she would have found it impossible to travel to London, or, indeed, to any court room, to attend the hearing. For those reasons, the family have participated by video link, and the four medical witnesses gave their evidence by video link. That does not detract, however, from this hearing being an ordinary hearing in open court, open to the public who could, indeed, have watched all the evidence on the large video screen in the court room if they wished to do so.
The mother is represented by the Official Solicitor, to whom I am very grateful for the very thorough way in which she and her staff have investigated this case in a short space of time.
By the conclusion of the hearing and all the evidence, there is a large measure of agreement, such that I can summarise the facts and the issues very briefly.
The mother is now aged 21. The best estimate of her gestational EDD is around the first week of June, today being 13 May 2021. The mother had certain behavioural problems as a child and young person which it is not necessary to elaborate. From the age of about 17, she has clearly suffered from severe agoraphobia. During the last several years, she has only left her home at all on a very small handful of occasions. When she does do so, she experiences overwhelming sensations of anxiety, shortness of breath, dizziness and palpitations. As a result, she does not work, travel, or socialise or shop (except online), or engage in any leisure activities outside her small flat.
The medical evidence, including that of Dr Tyrone Glover, the consultant psychiatrist instructed by the Official Solicitor as an expert witness, is clear that the mother does suffer a severe form of agoraphobia, which is a classified mental illness, and an impairment of, or disturbance in, the functioning of her mind or brain within the meaning of section 2(1) of the Mental Capacity Act 2005.
The mother's agoraphobia is so overwhelming that it exerts a significant effect on her ability to weigh matters in the balance if the activity in point entails her leaving her home. Further, in the opinion of Dr Glover, the mother has short-term memory problems which limit her capacity to manage and process complex, multifaceted information.
For these reasons, Dr Glover and the consultant perinatal psychiatrist for the applicant trusts both agree, as do I, that the mother lacks capacity to make decisions about whether her baby should be born at home or in hospital. Put simply, she is so overwhelmed by her agoraphobia that she is unable to weigh and process relevant considerations and unable to make any sort of decision about it. I am, accordingly, quite satisfied — and the Official Solicitor on her behalf now agrees — that the mother lacks capacity to make decisions about the location of the delivery of her baby, and also lacks litigation capacity in relation to that issue, and I will so declare.
The agoraphobia is longstanding and deep seated and there is no prospect of the mother's capacity improving in the relevant time scale of the next two to three weeks. The Court of Protection is, accordingly, both entitled and required to make the necessary decisions for her, applying a test of her best interests. As the mother dearly wishes to give birth to a healthy baby, undamaged by the process of birth, the safety and wellbeing of the expected baby, as well as her own safety and wellbeing, are relevant to the consideration of the mother's own best interests.
At the outset of that consideration of her best interests, I wish to make crystal clear that this case is not about the advantages or disadvantages of hospital birth or home birth, or vice-versa, upon which capacitous women may have different views and about which a capacitous expectant mother normally has autonomous and complete freedom of choice. But in this country that choice is normally made in the knowledge that if, during a home birth, a medical emergency arises which may imperil the wellbeing or even the life of the mother or the baby, the mother can be fairly rapidly transferred to a hospital if required. The nub of this case is the potential difficulty of transferring this particular mother to hospital if a medical emergency arose, but she was so overcome by her agoraphobia that she would not go. That, of course, could potentially occur at any time of day or night, or during a weekend, when far fewer resources might be available than if the mother is taken to hospital, not in labour, in a planned way so as to give birth there.
Unfortunately, due to her agoraphobia, the mother several times failed to attend hospital for scans, and the data in relation to the baby is less reliable than it otherwise would be. But, on the basis of a very recent home scan (less reliable than a hospital scan) carried out this week, on 10 May 2021, it is believed that the baby is entirely normally developed and on about the 50 th centile, with an EDD, as I have said, of around the first week in June. The mother is physically healthy, and currently there are no specific indicators that she may not have an uneventful, spontaneous labour and vaginal delivery. When I use the word “uneventful”, I do not in any way underestimate the physical and psychological demands and pain of a first birth upon a young mother, but there is no case specific indication that any particular medical emergency will arise in this case.
However, although child birth is the most natural of human events, it is not risk free. There are statistics which indicate that, in about 45 per cent of cases in which a young, healthy, primigravida mother embarks on a home birth, she will be transferred to hospital before the birth occurs. Of that 45 per cent, about one quarter are for urgent medical emergencies. The remainder are for important but less urgent reasons, such as a failure to progress, pain relief, or repairing tears. On that basis, about 10 per cent of all such home births require an urgent transfer to hospital for serious medical emergencies, threatening the mother and/or the baby. Professor James Walker, the consultant obstetrician instructed as an expert witness by the Official Solicitor, considered that what he called “urgent blue light ambulance transfers” occur during about one to two per cent of home births.
There is an overall statistic that about one in 200 hospital births tragically result in a still-born or otherwise seriously damaged baby. In cases which start as home births, that figure doubles to about one in 100. The difference between the two figures is largely, if not wholly, attributable to delays in effecting a transfer from the home to the hospital. In the present case, the medical witnesses do not in any way predict that there will be any emergency; but, on the basis of those known statistics, they must, appropriately and responsibly, anticipate the possibility that there may be.
A recent case in the Court of Protection, in which MacDonald J handed down an after-the-event judgment on 5 March 2021, vividly illustrates the dilemma which may (I stress, may) arise: East Lancashire Hospitals NHS Trust v. GH [2021] EWCOP 18. In that case, a woman aged 26, in her second pregnancy, had been in labour at home for nearly 72 hours and was suffering an obstructed labour. There was considered to be an urgent need for transfer to hospital and urgent inpatient treatment, including a possible emergency Caesarean section. But, like the mother in the present case, that mother suffered from acute agoraphobia and was refusing to go. In this emergency, an application was made to MacDonald J, the hearing of which is reported to have lasted from about 10 p.m. until shortly before midnight. At the end of it, 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, which, as I have said, was...
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Court Of Protection Newsletter - June 2021
...analysis of another recent case relating to capacity and sex. Pregnancy and agoraphobia: A NHS Foundation Trust -v- An Expectant Mother [2021] EWCOP 33 (13 May This case concerned an expectant mother who suffers from such severe agoraphobia that there was a risk that she may not be able to ......