Mental Capacity – Court of Protection Authorises Non-Consensual Caesarean Birth

Where people lack the mental capacity to make important decisions for themselves, judges will step in to ensure that their best interests are served, as was demonstrated by an unusual case in which the Court of Protection (CoP) authorised the planned Caesarean delivery of a disabled woman’s baby, despite her expressed wish for a natural birth.

The woman, aged 25, was born with microcephaly and has learning and behavioural difficulties. Living in sheltered accommodation, there was evidence that she understood only simple language and had no inkling of the complications that can arise in childbirth. She had made clear her desire for her child to be delivered conventionally, but the NHS trust responsible for her local hospital was convinced, on the basis of unanimous expert evidence, that such a course would put both her and her baby at risk.

The CoP accepted that the woman lacked capacity to make her own decision as to how her baby should be delivered. A care plan was approved whereby she would be taken to hospital, on the pretext of undergoing an examination, before a Caesarean delivery under general anaesthetic was performed. The CoP was satisfied that this element of subterfuge was justified in order to minimise the risk that she would resist the procedure and maximise the chances of a successful delivery.

The care plan was sanctioned under extreme time pressure as the woman was believed to already be in the early stages of labour. However, in a postscript to its ruling, the CoP noted that it had subsequently received happy news. In the event, it had proved unnecessary to implement the care plan as the woman had been able to give birth to her baby naturally, in accordance with her wishes. The distress and anger that she would inevitably have suffered on undergoing an operation to which she had not consented had thus been avoided.