Thread by @KitzingerCelia

The judgment has just been published

bailii.org/ew/cases/EWCOP…

openjusticecourtofprotection.org/2021/05/17/ago… via @OpenJusticeCoP

Mother "suffers from a severe form of agoraphobia which is a classified mental illness + an impairment of or disturbance in the functioning of her mind or brain within the meaning of s.2(1) MCA" (para 7 judgment)

Her 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 home". Also short-term memory problems, says expert witness, psychiatrist Tyrone Glover.

Dr Glover, psychiatrist for Trust + OS (lawyer for mother) all agree "that mother lacks capacity to make decisions about whether her baby should be born at home or in hospital" (para. 9)

So Court must make BI decision. "As the mother dearly wishes to give birth to a healthy baby, undamaged by the process of birth, the safety+wellbeing of the expected baby, as well as her own safety+ wellbeing, are relevant to the consideration of the mother's own best interests"

"I wish to make crystal clear that this case is NOT about the advance or disadvants of hospital birth or home birth ... upon which capacitous women may have different views ... + normally have autonomous + complete freedom of choice" (para. 11 judgment)

"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" (para 11))

"The nub of this case is the potential difficulty of transferring tis particular mother to hospital if a medical emergency arose, but she was so overcome by her agoraphobia that she would not go" (para. 11 judgment)

"It is believed that the baby is entirely normally developed .... the mother is physically healthy ... no specific indicators that she may not have an uneventful, spontaneous labour and vaginal delivery" (para. 12 judgment)

"However, although childbirth is the most natural of human events, it is not risk free. Consultant obstetrician Professor James Walker says "urgent blue light ambulance transfers" occur in 1%-2% of home births. (para 13 judgment)

Judge gives statistics about risks in home birth attributable to delays in transfer from home to hospital but acknowledges that "the medical witnesses do not in any way predict that there will be any emergency".

Judge comments on East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18 + says it illustrates "the need to anticipate problems of this kind + to face up to them as best one can in advance"

bailii.org/ew/cases/EWCOP…

Expert psychiatrist says mother's ability to accept hospital transfer "would be significantly enhanced" if there was a possibility of serious harm during labour at home but "her co-operation or acquiescence could not however be guaranteed" (para. 19 judgment)

All doctors, OS + judge agree "it is preferable + in the overall best interests of this particular mother + her baby, that she should give birth in hospital in a planned way around the EDD [Estimated Delivery Date] but before she goes into spontaneous labour" (para 21 judgment)

Mother's partner+ mother "who has herself given birth to 5 children,all in hospital" believe hospital birth would be preferable. Judge says this is relevant because "they are the family support network for the mother.She wishes them both to be present at the birth..." (para. 21)

"The mother herself says she would prefer to give birth at home,but she clearly expresses that that is due to her agoraphobia + fear of going out.I am satisfied that, but for her agoraphobia, the mother herself would opt for a hospital birth,as encouraged by her mother + partner"

"If the mother is successfully transported to hospital to give birth there, the the birth may either be induced or by Caesarean section." She can choose which.

(Note: neither induction nor Caesarean were mentioned in press reports.)

She'll be sedated (prob. 2 mg Lorazepam) to get her to hospital - along with "encouragement and persuasion" and "light physical guidance, such as the midwife or nurse taking her by the arm to assist + encourage her into the vehicle" (para. 25)

Hospital and Official Solicitor disagree "as to the extent of additional force or restraint which could lawfully be used on a pre-planned transfer + admission, if she was not actually in labour + no acute medical emergency has actually arisen". (para. 26)

OS agrees force+restraint can be used if she's in labour and there's a medical emergency.

OS does not agree that it's either justifiable or proportionate to use force or restraint for a pre-planned admission, however desirable such an admission might otherwise be. (para. 26)

Both psychiatrists agree force may have a damaging psychological effect - may entrench her agoraphobia, damage or impair bonding with baby, give her long-term flashbacks, compromise her attitude to future pregnancies + dealings with persons in authority. (para. 28)

"The Official Solicitor submits that these are known risks from the use of force or restraint which outweigh the more speculative + statistical risks, if the mother goes into labour at home but may then require an urgent transfer to hospital" (para. 28)

Trusts want 2 personnel trained in restraint techniques for planned transfer to hospital - permitted to use physical restraint + force to her arms + upper body so as to get her into the vehicle + from the vehicle to the maternity area of the hospital. (para. 29)

"It is, of course, an unattractive scenario + on the face of it, if resorted to, a severe infringement of the mother's personal autonomy+liberty. But on the other side of the balance here, there is the known, if small, risk that, if a pre-planned birth cannot be achieved...(cont)

...(cont.) some acute emergency may (I stress may) arise in the home from which the mother cannot be rescued before some catastrophe occurs to either her or her baby. The risk may be low, but that which is at risk could not be potentially more grave." (para. 30)

"I am,on balance,satisfied, albeit in disagreement with the Official Solicitor, that it will be in the overall best interests of this mother if - if the necessity for it arises on the day - some trained+professional force+restraint are used to transport her to hospital"(para.31)

So the order says it's lawful to transport her to hospital + if she refuses to attend voluntarily they can "use such chemical and/or physical restraint as is consistent with the Care Plan"

Note: The judgment was published on BAILLI this morning but has since been removed. I will repost a link to the judgment when it is reinstated.

And the judgment is now up again here: bailii.org/ew/cases/EWCOP…

The Daily Mail got on to this story rather late in the day (after the judgment was published) and recycles the same information as other papers. No link to the judgment. Comment below line show need for legal education on 'capacity' + right to family life!
dailymail.co.uk/news/article-9…