[CG} Impaired capacity in maternity care


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Capacity to consent may vary over time, and may depend on current circumstances. Therefore, it is decision specific, and may need to be assessed in relation to the particular decision that needs to be made, at that particular time, unless it is a clear and longstanding diagnosis.    

General principles remain the same as in any branch of medicine (the proposed intervention must benefit the patient, should take in to account their wishes, as far as it is possible to obtain them, should take in to account the views of relevant others, should restrict the patient’s freedom as little as possible, and enable the patient to exercise their capacity, as far as possible)

In general, emergency treatment to save the life of an adult is clear cut in law, and will cover maternal illness.

However, a baby has no rights in law until birth, so the situation is less clear cut when the intervention proposed is to promote the welfare of the baby, when the mother is otherwise well.

There may be a guardian or welfare attorney already in place, who can consent on the patient’s behalf. 

Often there is no legal guardian in place and maternity staff must act for the mother, in her best interests.

Everyone whose capacity to make decisions is impaired should have access to an independent advocate, in addition to health staff and family. This should be provided by social work, who must be involved if there is no legal guardian in place.

Enhancing capacity

Lack of capacity may be well documented and longstanding, such as in a woman with a learning difficulty, but she may be well able to verbally consent to, and participate in, the routine episodes of antenatal care, and have views about her own wishes, even although any operative delivery may require to be carried out under section 47 of the adults with incapacity act.

It is also the case that pain, stress and unfamiliar surroundings will impact negatively on patients’ ability to make decisions, so discussing wishes with the patient when she is best able to participate, allows us to fulfil the duty to enhance capacity as far as it is possible to do so, and will inform a birth plan which is best able to meet her needs.

Providing information at a speed and in a format most suitable to her, with time for repetition of information, also enables staff to assess her understanding of the information given.

If advance planning is not possible, for example when there is a sudden alteration in mental health, then eliciting the views of family regarding the mother’s wishes, when well, is the next best option.

Ultimately, we have to act in her best interests, and knowledge of what her wishes would be, is the best guide.


Everyone who has impaired capacity to make decisions should be offered an advocate independent of family. This is arranged through social work. Some women, for example with learning disability, may already have this in place, and have their own allocated social worker.

If not, referral to the local social work team is essential, and they should appoint an advocate., as well as an allocated worker. It is always worth asking for this at an early stage, as the more time the advocate and the women have together, the better.

The advocate will be able to have contact with the patient throughout, and to attend appointments. This can greatly increase patient confidence and enable women to better discuss their wishes.

Use of AWI forms

Depending on the timing of patients presenting with impaired capacity, two forms allowing treatment under AWI section 47 will probably be needed. For an operative delivery requiring signed consent, the form will require to be signed at the time by the obstetrician carrying out the delivery.

Experience suggests it is helpful to have this filed and ready with date and signature only to be added, to prevent uncertainty in an out of hours situation. For all other interventions in antenatal and postnatal care, such as venepunture, IV access, scans, vaginal examination, which would normally require verbal consent, it is helpful to have a form signed at the start of pregnancy, detailing these, and adding “any other interventions required for routine care”. The woman may well be able to verbally consent at the time, but as capacity can vary with pain and distress, it is helpful to have this legally covered.

Both forms can be prepared and filed in the notes to guide any staff who will be looking after her.

Antenatal care

Continuity of care from a small team is likely to be best, when staff can get to know the patient and her family, and be best placed to know her wishes. Some care delivered at home may be ideal, as the patient may be at her most relaxed there.

There may be mainstream learning disability team input, or mainstream psychiatry, and it should be discussed with them whether they, or the Perinatal Mental Health Team, will take the lead for the pregnancy. This will probably depend on whether she is ultimately likely to be the main carer for her baby, but the mental health lead is best established as soon as possible.

Clinical psychology input is also likely to be extremely helpful, particularly in terms of adapting a birth plan to meet the patient’s needs as much as possible.

The decision about offering antenatal fetal screening can only be made after considering what the management of the pregnancy would be in the event of a fetal anomaly; the ability to participate in that discussion will inform what is offered, and will depend on the understanding and wishes of the patient and her individual circumstances. If the impairment of capacity is such that consent to termination of the pregnancy would be impossible, or the views of family are that such an action would be unacceptable, there may be no benefit in detecting an anomaly. However, where prior knowledge of a fetal condition is beneficial to the baby, by allowing early neonatal intervention / discussion of site of delivery ,( -eg cardiac anomaly), it would be regarded as being in the mother’s best interests also. For this reason, fetal anomaly scanning, as a non interventional screening, would usually be offered. The decision to offer screening will therefore depend on the nature of the patient’s lack of capacity, and the views of those close to her.

If the patient finds communication problematic, relying on her for an assessment of fetal movement may be difficult, and third trimester scans for fetal wellbeing may be helpful, as well as enhancing bonding.

It will also influence whether or not intervention is best offered around EDD- if it is not possible for a woman to reliably report changes in fetal movement, it will need to be considered whether allowing the pregnancy to go beyond the EDD is advisable.

Mode of delivery

Vaginal delivery

May be the best option; in general safer, and with good pain relief, less distressing.

Stress and pain may cause impaired capacity to diminish further, so a plan, in conjunction with anaesthetic staff, for early pain relief, is essential. If monitoring mum or baby become difficult, early recourse to operative delivery may be needed, particularly if the mother is finding monitoring/ assessments distressing.

A clear plan in advance, for a trial of labour, with pain relief, and clear escalation to C/S if distress is occurring, is helpful to everyone involved. This would ideally be discussed well in advance with the woman and her family.

Depending on the complexity of the situation, a date for induction of labour could be considered to increase the chance of the staff present being those most familiar to her, and already aware of her needs.

Caesarean section

This may be thought necessary as an elective procedure, either on obstetric grounds, or because the difficulty of safe vaginal delivery in a patient who is unable to cooperate is thought too great to leave to an out of hours situation.

This needs a consensus view and MDT planning.

If the patient does not wish this, but it is held by the MDT that any other course is likely to result in harm to the patient herself (-eg placenta praevia), the decision is relatively straightforward.

If the decision is that the significant harm may be to the baby rather than the mother (-eg breech presentation), it is still possible to proceed, on the grounds that avoiding harm to her child is ultimately in the mother’s best interests. In this case, having had a prior discussion with the mother, documenting her anticipation of a healthy child, and expectation of family life, is extremely useful. Failing that, the views of the father and other family members are helpful, regarding how she would have been likely to judge, had she been well.

If a C/S delivery is against the mother’s known wishes, involvement of the CLO is extremely helpful to reassure all staff regarding the legality of their actions.

Postnatal care

Contraception - will depend on patient’s individual circumstances, her own wishes, and those of her family/ guardian but may well be needed if she is socially vulnerable, or if another pregnancy would be detrimental to her emotionally or physically. LARC is most likely the best option, before discharge if possible, or with a robust plan for as soon as possible afterwards.

Emotional support – this will be needed particularly if she is not to be the main carer for her baby. This may limit the input she receives from the Perinatal Mental Health services, but clinical psychology will be able to continue input. Her mainstream psychiatry team, or learning disability team, as well as GP, should all be made aware, so that support can be provided as soon as possible.

The Infant Mental Health team are a new resource who are also able to provide excellent support in a family setting, enabling the mother to participate as much as she can alongside other family members.

MDT planning

Safe delivery may involve obstetrics, anaesthetics, midwifery, psychiatry, and potentially paediatrics, so MDT planning is usually beneficial.

It is essential if the patient has no ability to cooperate, or there is any forensic history / threat of violence.

It may cover;

  1. timing and mode of delivery- is there enough maternal communication/ awareness to allow the pregnancy to go postdates?
    • Is IOL a valid option?
    • Is an out of hours delivery potentially safe?
  2. pain relief- for early labour, and delivery
  3. potential need for sedation/ restraint?
  4. transport- ambulance service may need to be aware of a transfer, especially if CPNs will be in attendance, this might require advance planning for a larger vehicle, or information about the best destination, which might not be the nearest.
  5. staffing- both midwifery staff and any CPN cover needed, both for labour ward and wherever the patient will be postnatally.
  6. ensuring everyone involved is aware of the plan.
  7. communication with CLO.

Requirement for court judgement

Where dispute regarding best management exists between medical staff and family, or different members of medical staff, the case may go to court. This is time consuming, so the earlier the plan is agreed, the better.

It is also recommended that when a C/S planned in the fetal interest is expected to pose higher than average risk to the mother, this should be brought to court also.

The option of sterilisation cannot be decided by staff or family; again, that is a court decision.

Last reviewed: 12 April 2022

Next review: 01 April 2027

Author(s): Dr E Ellis

Version: 1

Approved By: Obstetrics Clinical Governance Group

Document Id: 1024