A case of autism, learning disability, and refusal of a planned caesarean

In November 2016 a London court heard a case concerning a 24-year-old whose capacity to consent was being challenged by an NHS Trust (Re CA [2016]). The woman, known as ‘CA’, who lived in supported accommodation, had presented to the Trust at approximately 30 weeks' gestation. However, it was only when she was more than 38 weeks that the NHS Trust applied for a court declaration so that a caesarean could be carried out, if necessary without CA's consent. Court-ordered caesareans are rare, but the established legal doctrine concerning refusal of treatment is well-established: a competent woman can refuse, even if this were to result in her own death or that of her unborn baby (per Butler-Sloss LJ in Re MB [1997]). The crucial question is whether the woman is competent.

The late notification in ‘CA’ contravened court guidance, which stresses the need for early identification of a problem. In cases of pregnancy, this should be no later than 4 weeks before the expected due date. Late applications run the risk of being dealt with by the out-of-hours judge and without a full public hearing, and with incomplete written evidence. The Official Solicitor, a lawyer known as a ‘litigation friend’ who is appointed to represent vulnerable individuals, may have inadequate time to prepare the client's case; and there may be insufficient time to arrange for independent expert evidence if this is required (cf. Keehan J in NHS Trust 1 v G [2014]).