“Not nothing”? The Late Term Foetus in the Court of Protection
By Mary Neal - Posted on 9 June 2021
This post originally appeared on blog of The Open Justice Court of Protection Project. Further blog posts reflecting on the same case can also be found there.
‘Whatever else it may be a 36-week foetus is not nothing: if viable it is not lifeless and it is certainly human.’ (St George’s NHS Healthcare Trust v S  3 WLR 936 at 957 per Judge LJ.)
In the recent case of A NHS Foundation Trust v An Expectant Mother  EWCOP 33 (hereafter, ‘An Expectant Mother’), the Court of Protection (COP) was asked to give authority for a pregnant woman with severe (‘longstanding and deep seated’) agoraphobia to be transported to hospital for a planned delivery (using restraint if need be), notwithstanding her stated wish for a vaginal birth at home. As is now well-known, Holman J made the requested declaration, having determined that the woman lacked capacity to refuse because her agoraphobia prevented her from weighing relevant information and using it to reach a decision. As is also now known, the woman subsequently travelled to hospital without the need for restraint, and her healthy baby boy was born there, apparently naturally.
There have been numerous responses to the case published on the Open Justice Court of Protection blog (and elsewhere), written from a range of perspectives and focusing on the case’s central themes: mental capacity; best interests; phobias; paternalism and compulsion around childbirth (‘obstetric violence’). In this comment, I take the case as a starting point for reflecting on the COP’s engagement with the late-term foetus.
The status of the foetus in UK medical law
It is well-established in UK law that the foetus – at any stage of gestation – is not a legal person, nor a locus of independent justiciable rights or interests. As Sir George Baker noted in Paton v British Pregnancy Advisory Service Trustees  QB 276, ‘[t]he foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country.’
This position has been reaffirmed in medical law cases involving the right to refuse a c-section. In MB (An Adult: Medical Treatment)  EWCA Civ 3093, Butler-Sloss LJ noted that ‘[t]he foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation.’ (para. 60, emphasis added)
This was echoed the following year in St George’s NHS Healthcare Trust v S  3 WLR 936, with Judge LJ observing that ‘while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment…Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.’ (para. 957)
Judge LJ was clear that ‘the perceived needs of the foetus did not provide the necessary justification’ for overriding S’s capacitous refusal to consent to a caesarean.
Court of Protection jurisprudence
The principle that the foetus has no separate legal existence applies equally, and has been reaffirmed repeatedly, in the COP (see, for example, Guys and St Thomas’ NHS Foundation Trust v R  EWCOP 4; The Mental Health Trust and Anor v DD  EWCOP 11). In the COP, however, medical treatment cases involve assessing the best interests of the party (P) whose capacity is in question, and where that party is pregnant, ‘the delivery of her healthy unborn baby will be an intrinsic factor’ in the best interests assessment (Guys and St Thomas’ NHS Foundation Trust v R  EWCOP 4 at para. 62, per Hayden J.)
The health and safety of the foetus merits consideration in these COP cases, then, albeit indirectly, and Holman J did consider it in An Expectant Mother:
Using a BAILII database search, I found 14 reports of COP cases involving requests to authorise birth plans (most involved authorising c-section). In all 14, the authorisation was granted. In eight (including An Expectant Mother, which authorised transportation to hospital but acknowledged that P retained capacity to consent to or to refuse c-section), P’s known or presumed wish for the child to be delivered safely was cited as a factor in P’s best interests. In all 14 cases, however, what was authorised was also deemed necessary for P’s own safety, meaning that the wellbeing of the foetus was never the deciding factor.
Logically, for foetal wellbeing to figure at all, it must be possible to know or presume that the foetus is positively valued by P. Hayden J is undoubtedly correct in his carefully-worded observation that ‘it will rarely be the case…that P’s best interests will be promoted by permitting the death of, or brain injury to, an otherwise viable and healthy foetus.’ (Guys and St Thomas’ NHS Foundation Trust v R  EWCOP 4 at 63) Nevertheless, it is possible to imagine a case in which evidence of P’s attitude to the pregnancy would make any consideration of foetal wellbeing under the auspices of P’s best interests, in Alex Ruck-Keene’s phrase, ‘a misleading legal fiction’.
It is interesting to reflect on what would happen if the Court were asked to authorise a birth plan in a case where the risk of not doing so was primarily to the foetus, not to P, and there was evidence of the latter’s indifference or hostility to the former (e.g. an attitude like that of S in the St George’s case, who had said that in her view ‘it would be better for the baby to be dead’). Hayden J has expressed the view that, although a capacitous patient may exercise her autonomy in a way that ‘jeopardise[s] the life and welfare of her foetus’, the COP does not have ‘the same latitude’ to do so when it is the decision-maker. Again, however, this was said in the context of foetal wellbeing fitting within the rubric of P’s best interests. What might happen when the evidence does not support this, or even seems to contradict it?
Among the COP cases I found, there are a few in which P’s attitude to the foetus appears ambivalent, or cannot be gleaned from the text of the judgment (often, in these cases, P is seriously mentally ill or has serious learning disabilities – see, e.g., A London NHS Trust v KB & Anor  EWCOP 59; NHS Trust v JP  EWCOP 23; Re CA (Natural Delivery or Caesarean Section)  EWCOP 51; Royal Free NHS Foundation Trust v AB  EWCOP 50). In these cases, judges tend to make no mention of the significance of foetal wellbeing for P’s best interests. The case that seems to come closest to Ruck-Keene’s ‘legal fiction’ is the case of The Mental Health Trust and Anor v DD  EWCOP 11. In that case Cobb J noted, citing MB, that ‘[it] must be in the best interests of any woman carrying a full-term child whom she wants to be born alive and healthy that such a result should if possible be achieved’ and that accordingly ‘it is plainly in DD’s best interests (both physically and mentally) that her baby is born alive, healthy and safely’ (para. 97) However, I was unable to find any evidence in the case report that DD – who had ‘an extraordinary and complex obstetric history’ (five previous pregnancies with numerous complications, and five children permanently removed from her care) did actively want her child to be born alive and healthy. Unless there is additional evidence not presented in the text of the decision, this seems like a case where the presumption is doing a lot of work.
The right of a capacitous pregnant person to make their own medical decisions unfettered by any consideration for the life or health of the foetus they carry has been enshrined unequivocally in UK law. As Judge LJ emphasised in the Court of Appeal in St George’s NHS Trust v S, pregnancy does not reduce a competent patient’s right to make decisions about their medical treatment, and a capacitous pregnant patient therefore has the right to make a medical decision that might cause death or serious injury to the foetus, however repugnant such a decision might seem to onlookers. It was held in St George’s that S – who professed to be indifferent to the wellbeing and fate of her late term foetus – ought to have been allowed to make such a decision. Arguably, however, it is easy to say this in retrospect, and the real test of the principle would be a judge delivering a prospective judgment that enabled a pregnant person to decide in such a way.
The foetus’s lack of separate interests or rights, even in the very latest stages of pregnancy, has also been repeatedly affirmed in the recent jurisprudence of the COP. However, when a pregnant patient lacks capacity, and a ‘best interests’ assessment is being undertaken, the default position seems to be that P’s best interests will almost always be served by protecting the life and health of the foetus (where this does not risk P’s own life or physical health).
As such, the foetus of a pregnant person who lacks capacity might be said to enjoy a kind of legal status, not as anything of value in its own right, but insofar as it is known, or presumed, to matter to P. As a valued child-to-be, it wins a place in the consideration of P’s own best interests, despite lacking any legal interests of its own.
Nevertheless, as far as the law is concerned, the late term foetus is – despite Lord Judge’s famous dictum – ‘nothing’ meriting consideration in itself, and it remains to be seen what the result would be if a case came before the COP in which there was evidence that, rather than positively valuing the late-term foetus, P was indifferent or even hostile to it. Presumably, the right legal approach in such a situation would be to disregard the health and safety of the late-term foetus, perhaps obliging a judge, in Alex Ruck-Keene’s words, to ‘endorse a plan which could lead to the death of a viable baby’. To navigate such a case would surely prove very challenging, even for a court as expert in making best interests assessments as the COP.
Image by Heather Mount at Unsplash