Women and birthing people’s consent is needed for every medical procedure, however minor, except in a life-threatening emergency when the individual is unable to make their wishes known, and in cases where a person has been deemed to lack capacity. If a woman or birthing person is deemed to lack capacity, decisions about their treatment must be made in their best interests. The Mental Capacity Act (2005) or the Adults with Incapacity Act (Scotland) (2000) set out the factors that should be taken into account in deciding someone’s best interests.
In our recent work with Birth Companions on the experiences of women and birthing people facing multiple disadvantage, midwives raised concerns about whether individuals with cognitive or learning needs were always being appropriately identified and supported to make decisions about their care. They felt that concerns about whether a person had capacity may be less likely to be followed up, and decision-making support less likely to be offered, if an individual was perceived to have made the “right decision”. NHS Trusts may be in breach of Articles 8 and 14 of the European Convention on Human Rights if they fail to provide equal access to care which promotes women and birthing people’s autonomy in decision-making.
In 2017, we hosted a seminar with 39 Essex Chambers and Queen Mary University on “Childbirth and the Court of Protection” to take a critical look at forced caesarean decisions. 90 senior judges and lawyers considered issues of mental capacity and decisions in childbirth, implications for protected characteristics and discrimination, and the need for multi-professional expert witnesses in Court proceedings.
Birthrights will be developing our work on human rights issues that arise for pregnant women and birthing people facing questions around their mental capacity in the coming months.
With thanks to the Esmée Fairbairn Foundation for supporting this work.