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Mental Capacity and Childbirth

While we can't make specific promises, it is vitally important that a woman knows her wishes will be taken into account. Dr Livia Martucci, Consultant perinatal psychiatrist

Posted on 11 November 2020

Suzanne White, head of Leigh Day’s clinical negligence team, chaired another webinar for the Women’s Rights in Healthcare series, this time covering the topic of Mental Capacity and Childbirth. 
 
She was joined by Victoria Butler-Cole QC, a barrister specialising in health and social care law, Dr Livia Martucci, consultant in peri-natal psychiatry and Dr Sam Halliday, co-director of Durham Centre for Ethics and Law in the Life Sciences at Durham University.
 
To set the scene, Victoria Butler-Cole gave a summary of mental capacity law and how it applies to maternity care and childbirth:
 
“Mental capacity is assumed for everyone, but when a person’s ability to make a decision comes into question, there is a legal framework that must be followed, following the Mental Capacity Act of 2005. 
 
“Firstly, you must see if there is some kind of mental impairment or disorder – either temporary or permanent – that could stop them from being able to make a decision. 
 
“And then you test whether the person can demonstrate the four features needed to make a decision: can they understand and remember the relevant information required, can they use it to make a decision, and can they clearly communicate that decision with appropriate supports in place, if needed. 

“If a person is deemed to lack capacity, then a decision can be made by medical professionals that is regarded to be in their best interest. If the patient (or patient’s representatives) disagrees with the professionals, it has to go to the Court of Protection for a judge to decide what the best interest decision should be.”
 
The area of maternity care is a particularly thorny one for best interest decision making as interventions go beyond what are usually considered normal levels of care and may include features such as restraint, sedation, and potential deprivation of liberty. For example, if professionals are recommending a general anaesthetic and a caesarean section for a woman who does not agree to this (but is assessed to lack capacity), it has to go to court.

Victoria said:

“The cases that most commonly end up in court are ones where medical professionals have concerns that the woman is not going to be easy to manage during the process of labour, she isn’t going to comply with monitoring or examinations, or be able to take on board advice or information about interventions that might be needed. 
 
“The court will need to hear expert advice on the risks and benefits of carrying out a caesarean section for example, and why the healthcare professionals deem this to be in her best interest. The priority for the courts is always to secure a safe delivery and in almost every case the judge will agree that a caesarean can be performed should it become necessary, despite the woman’s objection to this – when it is clear that she lacks mental capacity to decide this for herself.”
 
Perinatal psychiatrist, Dr Livia Martucci, presented two cases, one of a woman with a schizo-affective disorder who was an inpatient in a psychiatric ward during the time of her delivery, and another of a woman who had experienced postpartum psychosis after the delivery of her first child, and was now pregnant for a second time.

Livia said:

“What we often see is that at the time of delivery, people’s mental state can change very dramatically and rapidly. Somebody can be coherent and communicative, and then only 30 minutes later be very unwell and unable to think clearly. 
 
“For women with pre-existing (or history of) mental illness, there is no way of guaranteeing that her ability to continue to make capacitous decisions – including ones deemed unwise by professionals – will remain throughout her labour. It is very important that discussions are held with the woman during her pregnancy while she is well and has capacity (if possible), and that she knows her wishes and feelings will be taken into account in the event that she is not able to think clearly and communicate them while in labour. 
 
“We may not be able to make promises, as you can never predict how a labour will progress, but we can often agree in advance on what interventions to try or not try, and what should only be used as an absolute last resort.”

Dr Sam Halliday elaborated further on the legal and ethical aspects around a woman making her preferences known in advance.

Sam said:

“Personal choice is a central tenet in all policy documents relating to maternity care these days in the UK, but the lived experience continues to be very different for many women. Childbirth is still considered as a medical procedure rather than a natural process; it is protocol led and any choices are dictated by clinical guidelines. 
 
“Medical discourse is powerful, and it constructs pregnancy and childbirth as risky, something that needs to be managed, to ensure nothing goes wrong. 
“The consequence of this approach reduce choice for women who are cautioned to act responsibly. Problems arise when women fail to acquiesce and do not comply with medical advice. The very fact that a woman refuses advice often opens up questions about her mental capacity.
 
“Looking at cases from the past 10 years, it would seem that when it comes to women with serious mental illness, the decision-making process is still dominated by the medical discourse and themes of risk and control run throughout every case. Women are supposed to be in control of their pregnancy and delivery but what this means in reality is women are supposed to remain compliant.”

Sam completed the presentations by outlining what can be done to help women’s voices be heard amongst the medical arguments:
 
“The Mental Capacity Act recommends that individuals are empowered to make decisions and all practicable steps must be taken to support this process before someone is deemed to lack capacity to make the decision. 
 
“The best way forward to help pregnant women with mental illness is through much greater use of advance decision making. Women should have maximum opportunity to participate in discussions around treatment and interventions not only at the end of their pregnancy but right the way through it. Their wishes must carry significant weight when considering best interest and not be merely dismissed. 
 
“The traditional birth plan should be regarded as an advance decision; this plan should be detailed and must be very specific to each possible scenario to be valid and applicable. Her expressed and documented preferences made earlier in the pregnancy should have the same validity as a woman’s refusal when she is in the throes of labour.”

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Suzanne White

Suzanne White

Suzanne White is head of the clinical negligence team and has specialised in this area of law since qualifying in 1999

Mental capacity is assumed for everyone, but when a person’s ability to make a decision comes into question, there is a legal framework that must be followed, following the Mental Capacity Act of 2005.

Victoria Butler-Cole