Feasibility of covert caesarean

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

At the late stage of 36 weeks' gestation, one week before proposed delivery, a hospital Trust’s application for a covert caesarean section was heard in the Court of Protection. The judge could see no reason why it should not have been possible for the application and hearing to have occurred much earlier.

Notwithstanding the urgency, the court heard that JP, the mother, was 25 years old, with a mild to moderate learning difficulty which affected her cognitive ability. She was unable to make a decision as to mode of delivery because she did not understand the relevant information, and was unable to use or weigh that information as part of the process of making the decision. Her health visitor and obstetrician described in evidence numerous attempts to convey information, but on each occasion her learning difficulty precluded her from using or weighing it.

It was considered that an attempted vaginal delivery would be highly risky. The patient’s usual response to pain and distress was to run, hide or become aggressive. If she escaped the hospital, she would likely suffer haemorrhage and infection. An escape attempt midway through labour would place the unborn child at great risk. An epidural would not be feasible, given her intolerance of needles. Routine blood tests had proved to be fraught, barely practical.

What was proposed was a care plan based on a deceit. JP was to be asked to attend the hospital ostensibly for a monitoring visit, which in reality was a pretext for planned caesarean section. Oral midazolam would be disguised in a drink, and when that had taken effect the patient would be anaesthetised. The necessity for physical restraint was anticipated. Her cooperation might need to be enhanced with intramuscular ketamine. Once anaesthetised, a caesarean section and epidural would be performed; discharge to her residential unit was anticipated within one to two days. The plan also envisaged the newborn baby being removed from her after birth.

The risks and benefits of vaginal and caesarean delivery were identified and balanced. The clinicians involved asserted that vaginal delivery would be profoundly distressing and extremely risky for JP. The court was told that if vaginal delivery was commenced there was a realistic chance that JP would attempt to flee; ultimately, restraint and sedation and emergency anaesthesia and section would result. In face of this prospect, the covert care plan was seen by the court as the ‘least worst option’.

There was, however, no doubt that JP made her wishes and feelings clear; she ‘wanted to push it out’ and ‘did not want to be cut open’. For this reason, and the foreseeable distress, distrust, anger, and frustration caused by both the deception and the grossly invasive procedure against her will (in such a profoundly important matter) weighed considerably against approval of the treatment plan. Nevertheless, the judge found that ‘…the risks attendant upon an attempted vaginal delivery are so high that they plainly outweigh the risks linked to the proposed plan. The other disadvantages to JP of approving the proposed plan are not such to outweigh the overall medical advantages to her of approving it’.

The judge declared the covert caesarean section lawful. But at the same time, nature took its course. The day after the oral judgement, JP went ‘off plan’. After the spontaneous onset of labour, JP gave birth to her baby naturally, without dramatic incident.

As the plainly delighted judge later put it, ‘The capacity for individuals to confound judges’ assessments is a reminder (to me at least) of the gap between probability and actuality’. He wished mother and baby well.

As we all know, clinical life can be equally confounding.

Robert Wheeler
Department of clinical law
August 2019