OXFORD UNIVERSITY HOSPITALS NHS FOUNDATION TRUST v Z [2020] EWCOP 20

Date: 03/04/2020

What Happened

Z was a 22 year old pregnant woman with a rare chromosomal abnormality syndrome. As a consequence, she suffered from cognitive impairment and a bicornate uterus.

This was her fifth pregnancy. Three of her children had been taken into care, and one sadly died at 6 days old. Z had had complications with all her previous pregnancies, and this pregnancy was considered high risk. As such, she was booked in for a planned C-section.

She had capacity to make general decisions about her ante-natal and mode of delivery.

Z’s medical team (Oxfordshire University Hospital NHS Foundation Trust) made an application to the Court of Protection (CoP). The Trust considered that in light of Z’s obstetric history, she lacked capacity to make decisions concerning contraception. Therefore it would be in Z’s best interests to fit an intrauterine contraceptive device (IUD) at the same time of her C-section to prevent future pregnancies and ‘enable family spacing’.

Z was against having an IUD fitted, and wanted to have the ‘long lasting contraceptive injection’ instead.

Capacity

The Judge set out the legal principles when deciding if a person lacks capacity or not:

  • A person must be assumed to have capacity unless it is established that she lacks capacity: s.1(2) MCA.
  • The determination of capacity under Part 1 of the MCA is always “decision specific”
  • Any lack of capacity must result from an impairment of, or a disturbance in, the functioning of the person’s mind or brain: s.2(1)
  • It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary
  • A person is to be treated as unable to make the decision on the matter in issue for herself if she is unable to
    • understand the information relevant to the decision;
    • retain that information;
    • use or weigh that information as part of the process of making the decision; or
    • communicate that decision: s.3(1);
  • The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as able to make the decision: s.3(3);
  • The “information relevant to the decision” includes information about the reasonably foreseeable consequences of deciding one way or another; s.3(4)(a);
  • The Court should guard against over-complicating what is the “information relevant to the decision”
    • Baker J in CC v KK & STCC: “it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors.”
    • However, the more serious the decision, the greater the capacity required (In re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113B;
  • A person is not to be treated as unable to make a decision merely because she makes an unwise decision: s.1(4);

The test for capacity to decide on contraceptive treatment was set out by Bodey J in In re A (Capacity: refusal of contraception) [2011] Fam 61 as follows:

“… the test for capacity should be so applied as to ascertain the woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment, including:

  1. the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);
  2. the types available and how each is used;
  3. the advantages and disadvantages of each type;
  4. The possible side effects of each and how they can be dealt with;
  5. how easily each type can be changed; and
  6. the generally accepted effectiveness of each.”

Did Z have capacity to make decisions about contraception?

All reports agreed that Z lacked the capacity to make the decision about contraception and the insertion of an IUD.

Z had a pattern of yearly pregnancies, showing an inability to control and understand her fertility.

There was extensive medical evidence to show that any future pregnancy would pose a high risk to Z’s health. Each pregnancy was getting more and more complicated; she had gestational diabetes (resulting in large babies, making delivery more dangerous), and had already had two c-sections (which increase the risk of uterine rupture, haemorrhage, the need for hysterectomy, the possibility of the mother or baby dying).

The medical professional stated that “any future pregnancy would require a fully compliant, understanding mother so as to maximise the mother’s safety and that of her baby.” He concluded that Z was “an extremely high risk individual where any future pregnancy would carry with it a significant risk to her and her baby’s health”.

The ability to “understand and weigh up the nature and degree of the physical risks to her consequent on another pregnancy was fundamental to Z’s ability to make a decision about contraception”. Capacity assessments showed that Z did not have sufficient understanding of her own health status to apply any grasp of risks and benefits to her own individual circumstances.

Z was unable to explain why she wanted the injection rather than the IUD, stating ‘it’s my body, I’m having the injection’. She lacked any understanding that her compliance could be an issue, as the Doctor pointed out that she was not complying with her other medication for diabetes, anaemia and nutritional deficiencies.

The Doctor concluded that “In my opinion, [Z] has an inability to understand all the relevant information, specifically the risks to her health if she were to get pregnant again. [Z] did not appear to understand what an Intrauterine System (IUD) was or how it would be inserted, despite this having been explained to her at great length and with assisting diagrams by [Dr A]. I am satisfied that clinicians involved in [Z’s] care have exerted considerable time and effort in supporting [Z[ to understand this information, and am confident that nothing further could be done within the timescale available to enhance [Z’s] understanding”.

Therefore the judge decided that it was clear Z lacked capacity to make decisions concerning the insertion of an IUD and that it was “vanishingly unlikely” that Z would attain capacity to make decisions about contraception before her planned Caesarean section (which was scheduled for less than a month later).

Best Interests s.4 MCA

It was abundantly clear that it was in Z’s best interests to have some sort of contraception in place. Without it, it was “almost certain” that Z would repeatedly become pregnant, and each pregnancy would carry cumulative health risks.

Doctors advised that “the increasing risk to [Z’s] health in subsequent pregnancies, with the risk of uterine rupture and placenta percreta, which could lead to haemorrhage, hysterectomy and her death, means that she should be advised not to get pregnant for at least two years and preferably never again. Contraception needs to be as efficient as possible and not reliant on [Z] as she has not shown compliance before. An IUD would be the best balance, it is efficient, has minimal side effects and is reversible if the situation changes.”

The Judge stated that although a contraceptive injection would be the least restrictive approach (set out in s.1(6) of the Act) and was in line with Z’s wishes, it would not be sufficient. The purpose was to prevent the serious risk that future pregnancies posed to Z’s health. Because Z had a history of poor compliance with the contraceptive injection and other medical treatments during pregnancy, the judge stated that it was in Z’s best interests to have an IUD fitted at the time she had her Caesarean.

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