Case law surrounding fluctuating capacity – Wrightington, Wigan and Lee Teaching Hospitals NHS Foundation Trust v SM

Before Mr Justice Cobb on 18 November 2022, in the Royal Courts of Justice the issue of fluctuating capacity was considered in a case involving a minor (aged 16) and the safe delivery of her unborn baby.

The case involved SM who was a looked after 16-year-old who resided in a supported living complex in Wigan. SM received care from a team of support workers. SM had a history of sexual exploitation and suffered from a complex post-traumatic stress disorder. SM had a history of hospital admissions as a result of her mental health and declined medication on the basis that she feared the medication would cause her mental health to deteriorate further.

SM was deemed as a looked-after child within the definition of section 20 of the Children Act 1989. She was in the advanced stages of pregnancy and had resisted the need for a caesarean operation to be performed to ensure the safe delivery of her baby. Her antenatal care had been good and aside from her mental health the pregnancy had been uncomplicated. However, during the pregnancy she had shown signs of concerns and fear of giving birth. Caesarean section had been attempted on three separate occasions together with an attempt at induction, whereby SM had been unable to go through with the procedure due to fear and anxiety.

The applicant, the NHS Trust sought relief from the Court including a declaration that SM lacked capacity to make decisions regarding her obstetric care and treatment; the Court’s authority to proceed with the proposed plan of a caesarean section operation and to deprive SM of her liberty in order to achieve the safe delivery of the baby.

It was held that SM had capacity to conduct the proceedings and the Official Solicitor declined to act as litigation friend. The Official Solicitor also declined to act as an advocate to the Court. SM instructed a firm of Solicitors to represent her in the proceedings.

Mr Justice Cobb reviewed the evidence before him including various reports and oral evidence from the anaesthetist, obstetrician, psychiatrist and social worker.

Reference was made by Mr Cobb to a previous case of GSTT v SLAM and R (2020) where Hayden J held that “The inviolability of a woman’s body is a facet of her fundamental freedom but so too is her right to take decisions relating to her unborn child based on access, at all stages, to the range of options available to her.” It was further held that “the Court is required to step in to protect her, recognising that this will always require a complex, delicate, and sensitive evaluation of a range of her competing rights and interests.”

The Judge also held that the longer the situation went on, the greater the risk of stillbirth and this outcome would have a detrimental effect on SM, in view of her fragile mental health. The NHS Trust had a team of experts on hand to deliver the baby by caesarean section, against SM’s will, subject to the outcome of the hearing.

Mr Cobb said he was satisfied having given thought to all the evidence that it was clear that SM had lost capacity over the preceding days when she had become overwhelmed by anxiety and stress and should the situation arise again, if the welfare of the mother and baby was compromised to find that the caesarean section was necessary then it would be lawful for the hospital to go ahead with the procedure.

The NHS Trust provided details of the three options available which included vaginal birth, caesarean section under local anaesthetic and caesarean section under general anaesthetic. It was held that whilst previous examinations had not pointed out any concerns, in relation to delay, regular monitoring may not show any concerns with the baby and in view of the practical difficulties it was anticipated that some level of restraint may be necessary. It was also considered that SM would not be able to cope with spontaneous labour. Dr PA for the NHS Trust also explained that the chances of SM cooperating were low, and that further induction may cause distress and should not be embarked upon.

SM had submitted prior to the hearing that she wished to be able to deliver her baby with the least intervention and that she wanted to be aware and awake on delivery of the baby. She also maintained that she should be allowed to proceed to full term and would attend at the hospital for daily check ups if that was determined necessary. SM advised that the previous attempt at induction had been uncomfortable and she confirmed that she would be willing to give it a further try as she was now aware of the implications. SM also said that she had felt bullied by the NHS Trust. At the conclusion of the hearing SM agreed to a further attempt at induction failing which a caesarean section procedure would be performed.

Dr ZS concluded that SM had fluctuating capacity and was without capacity when overwhelmed with stress and anxiety.

Mr Cobb gave weight to SM’s wishes and considered that she was more aware of the circumstances and held that an induction should be attempted one further time. He ordered that should she become overwhelmed a caesarean section under general anaesthetic would be in her best interests to safeguard the well-being of SM and her baby.

SM was vaginally induced following the hearing and safely delivered a baby girl the following day.

The full judgement can be found here –

For more information, please contact Tanya Foran by email at

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