There was an application before the court in respect of DD, a 36-year-old woman with learning difficulties, who was pregnant with her sixth child. The applicants sought for declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. The applicants applied for a further order authorising the conduct of an assessment of DD’s capacity to make decisions about contraception, following the imminent birth.

Re DD: Court of Protection: 4 July 2014

Court of Protection – Incapacity – Best interests – Mother, DD, with learning difficulties on sixth pregnancy – Applicants seeking orders regarding health of DD during  final stage of pregnancy, and in  safe delivery of unborn baby – Applicants seeking further order authorising assessment of DD’s capacity to make decisions about contraception, following imminent birth

DD was known to social services for almost all of her life, the subject of a child protection plan as an infant as a result of concerns about her ill-treatment at the hands of her own parents. It was apparent that from an early age that her intellectual functioning was impaired.

She was provided with special education, and benefited from the equivalent of a statement of special educational needs. She left home in 2002, aged 24 to live with a partner, TJ, a man with mild learning difficulties. DD and TJ later separated. In 2008, DD and BC met and began a relationship. At 36 years of age, D was in an advanced stage of pregnancy with her sixth baby.

DD’s five older children were all cared for by permanent substitute carers; four of the children had been adopted.

DD had been subject to various complications, with potential life-threatening consequences, in pregnancy and child-birth.

The first applicant was the relevant healthcare body which provided, and will continue to provide, DD with mental health services; the second applicant was, it was proposed, provide the proposed medical obstetric treatment for DD, and the third applicant was the relevant local authority charged with safeguarding responsibilities for DD (and the unborn child).

The applicants applied for declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. The applicants applied for a further order authorising the conduct of an assessment of DD’s capacity to make decisions about contraception, following the imminent birth.

The issues were, inter alia, (i) whether DD had capacity to litigate in relation to the relevant issues pursuant to section 3 of the Mental Capacity Act 2005; (ii) whether the declarations sought were in DD’s best interest; (iii) whether DD lacked capacity to consent to be subject of an assessment of her capacity to make decisions in relation to contraception under sections 48 or 15 of the act.

The applicants proposed that neither DD nor BC should be advised of the date planned for the caesarean procedure, but should be provided with partial information. Consideration was given to articles 6 and 8 of the European Convention on Human Rights.

The court ruled: Applying established principles, DD lacked the capacity to litigate in relation to the relevant issues. She lacked capacity to make decisions in respect of her healthcare; in particular she lacked capacity to decide where to give birth to her unborn child and to decide how to give birth to her child.

It was in DD’s best interest, and therefore lawful for her to be conveyed to the second applicant trust’s hospital and for the medical, nursing and midwifery practitioners attending upon her to carry out a planned caesarean section procedure and all necessary ancillary care, in the view of treating clinicians, for that procedure and to provide DD with all necessary ancillary pre-operative care and treatment and post-operative care and treatment.

The applicants were authorised to take such necessary, reasonable and proportionate measures to give effect to the best interests declaration above to include forced entry into her home, restraint (so that she does not leave the ward pending treatment and/or until it was clinically appropriate for her to be discharged) and sedation.

There were reasonable grounds to believe that DD lacked capacity to consent to an assessment of her capacity to make decisions in relation to contraception, however it was not in DD’s best interest that she should be subject of a one day assessment of her capacity to make decisions about contraception at the present stage. Sedation might be needed to ensure that DD did not cause herself harm at the time of the transfer to, and in-patient stay, in the hospital.

General anaesthesia was likely to be necessary to facilitate the caesarean section given the risks to herself if she were to interfere with the surgical procedure, or choose to be non-compliant with localised anaesthetic.

However, the provision of only partial information was a justified interference with DD’s article 8 rights as necessary in the interests of her health and the health of her unborn child (see [134], [137], [144] of the judgment)

The issue of assessment of capacity to make decisions about contraception will need to be addressed as a matter of urgency (within two months or so) following the birth (see [163] of the judgment).

Masterman-Lister v Brutton & Co [2003] All ER (D) 59 (Jan) considered; A Local Authority v Mrs A (by the Official Solicitor) [2011] All ER (D) 205 (Jan) considered.

John McKendrick for the applicants; Michael Horne for DD; BC was neither present nor represented.

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