If capacity can fluctuate, how can a court navigate critical birthing decisions?

The Court of Protection (CoP) exercised its jurisdiction to make urgent medical decisions on behalf of an individual lacking capacity due to significant mental impairment, highlighting the critical interplay between personal autonomy, medical necessity, and the protective framework of the Mental Capacity Act (MCA) 2005. 

Background:

AX is a 30-year-old woman who is 38 weeks pregnant, and detained under Section 2 of the Mental Health Act (MHA) 1983 due to depression and psychosis. She is the mother of a 7-year-old son, who was delivered by caesarean, or “C-section”, in 2018 and is currently living with his maternal grandmother. AX suffers from gestational diabetes, for which she requires medication and continuous monitoring, although she has not been compliant with the latter. The father of AX's unborn child is neither a UK citizen nor a UK resident, and reportedly does not wish to be involved in the care of the child.

The NHS Trusts sought urgent declarations from the CoP that AX lacked the capacity to make decisions about her imminent birth and that an elective C-section was in her best interests. She also has gestational diabetes and a risk of pre-eclampsia, with non-compliance in monitoring these conditions. 

Earlier in her current pregnancy, when she was considered to have capacity, AX had expressed a preference for an elective C-section. However, after being detained under the MHA in late May 2025 due to a significant mental health deterioration, her preferences fluctuated between a home birth and a C-section. She was also refusing various antenatal care procedures.

Decision: 

The CoP ruled that a planned C-section was in AX’s best interests, as it aligned with her previously expressed wishes while her capacity was intact and mitigated the significant medical risks associated with her pregnancy. 

Under the MCA 2005, a person is presumed to have capacity unless proven otherwise.  The Court applied the two-stage test under the MCA. The first is that there is medical evidence from consultant psychiatrists and obstetricians confirming that AX was suffering from an acute psychotic disorder and depression. Second, her inability to decide due to the impairment must be established. “On the evidence before me and on the balance of probabilities that AX cannot retain or use or weigh the information that she has been given to make decisions about her obstetric care and ancillary care and treatment, and this is because of an impairment or disturbance in the functioning of her mind or brain.”

The Court considered all relevant factors under Section 4 of the MCA 2005 and decided that the planned C-section is likely to result in the best possible outcome for the baby and would, in turn, reduce the chances of prolonging AX's acute psychiatric illness. Moreover, due to gestational diabetes (with inconsistent monitoring) and the risk of pre-eclampsia, a planned C-section at 38 weeks was clinically recommended to prevent such risks as stillbirth. AX's non-communicative state has only increased the risk of complications not being identified during spontaneous labour.

Implications:

This case offers a timely reminder that capacity is decision-specific and can fluctuate. A person may have the capacity for some decisions at one point in time, but lose it in relation to other aspects at others. This means that ongoing assessment by professionals is crucial, and past wishes expressed, when capacitous, carry significant weight in such best interests decisions.

This judgement meticulously applies the Section 4 best interests checklist, demonstrating how the Court balances diverse factors, including medical, personal wishes and feelings, and those concerning dependents (e.g., the unborn child), when an individual lacks capacity.

This case underscores the vital importance of Lasting Powers of Attorney (LPA), particularly with regard to health and welfare. If AX had made a valid LPA for health and welfare when she had capacity, then her appointed attorney might have been able to make decisions about her medical treatment, potentially simplifying the process and avoiding the need for extensive involvement by the Court of Protection.