https://caselaw.nationalarchives.gov.uk/ewcop/2023/5
This case concerns the question of whether R had capacity as regards her birthing arrangements. R was a serving prisoner and a failed asylum applicant. She had two previous children, both of whom had been removed from her care. R was a serving prisoner, following a conviction for an unspecified offence of violence.
There were concerns about the growth of her baby, and other complications, which led to the clinicians involved determining that a Caesarean section was the only safe course of action. However, the clinicians could not agree on R’s capacity to make this decision.
The first stumbling block was the difficulty in identifying whether R was suffering from an impairment of, or a disturbance, in the functioning of the mind, or brain. The clinicians broadly agreed that R’s presentation suggested that the functioning of her mind was impaired but could give no formal diagnosis. This case therefore gave rise to the question ‘whether a formal diagnosis in respect of R is necessary in order for the terms of s.21(1) of the 2005 Act to be satisfied’.
In order to answer this question, MacDonald J referred to the judgement of the Supreme Court in A Local Authority v JB [2022] AC 1322 which sought correctly to identify the essence of the ‘’matter’’ for which the decision is to be made:
First, what is the “matter”, i.e. what is the decision that R has to make?
Second, what is the information relevant to that decision?
Third, is R unable to make a decision on the matter?
Fourth, if R is unable to make a decision on the matter, is that inability caused by a disturbance in the functioning of her mind or brain?
The Official Solicitor proposed that the matter to be considered was ‘’whether to carry her baby to the point of natural childbirth or to have the baby delivered earlier, and if so whether to do so by induction or Caesarean section.’’ MacDonald J considered this to be too broad as the medical team were only offering one clinically safe course of treatment, a Caesarean section, so the relevant decision could only be whether R had capacity to make that specific decision.
MacDonald J went on to reference Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) in breaking down what is expected in terms of decision making, and not expecting of R more than the broad, general understanding of information relevant to the decision-making that would be expected of the population at large, who do not, typically, break down every decision into discrete component parts. In this matter MacDonald J considered the relevant information to be derived from questions that could reasonably be anticipated from a member of the population at large when being told that their doctor is recommending an elective Caesarean section, these being:
- The reason why an elective Caesarean section is being proposed, including that it is the clinically recommended option in R’s circumstances.
- What the procedure for an elective Caesarean involves, including where it will be performed and by whom; its duration, the extent of the incision; the levels of discomfort during and after the procedure; the availability of, effectiveness of and risks of anaesthesia and pain relief; and the length and completeness of recovery.
- The benefits and risks (including the risk of complications arising out of the procedure) to R of an elective Caesarean section.
- The benefits and risks to R’s unborn child of an elective Caesarean section.
- The benefits and risks to R of choosing instead to carry the baby to term, followed by natural or induced labour.
- The benefits and risks to R’s unborn baby of carrying the baby to term, followed by natural or induced labour.
In relation to (iv) MacDonald J made it clear that R’s child had no separate legal identity until born, but that this did not prevent the impact on the unborn child being considered relevant information to the matter requiring her decision. Indeed, he went on to say that it was likely to be one of the foremost pieces of information a pregnant woman would consider relevant, in deciding whether to undergo any medical procedure during pregnancy.
Evidence presented in this case showed that R had shown some interest in the baby by asking to see scan photos, wanting baby clothes and speaking about seeing the baby from time to time, giving the inference of a preference for having a live, healthy baby.
Considering whether R was able to make a decision on the matter, MacDonald J commented on the brevity of information in the documents detailing the outcome of the various capacity assessments completed with R. Whilst understanding the volume of work this would entail, he stated that the minimum requirement would be detail on the formulation of the matter; formulation of the relevant information; an account of how the relevant information was conveyed, and with what result.
MacDonald concluded that whilst R was able to understand in a limited way the information conveyed to her, she was unable to retain it for long enough to be able to use or weigh the information and communicate a decision and therefore was unable to make a decision about whether or not her baby should be delivered pre-term by elective Caesarean section.
Concluding that R was unable to make a decision on the matter, the final question to be addressed was whether this was caused by a disturbance in the functioning of her mind or brain. The Official Solicitor argued that the court must identify the underlying condition; however, MacDonald J set out why a formal diagnosis is not required, stating that the inability of R to make a decision in relation to the matter and whether this was because of an impairment of, or a disturbance in, the functioning of the mind or brain is a question of fact for the court to answer based on the evidence before it. He went on to say that the words ‘’impairment of, or a disturbance in’’ have no basis to be tied to a specific diagnosis, and that it would be undesirable for this to be the case as this fails to take into account the complexity of the mind and brain, and the range of factors that may act to impair their functioning.
MacDonald J noted that despite no formal diagnosis, R, on the balance of probabilities, had a learning disability, and that this alone amounted to an impairment that disabled R from being able to make a decision on the presenting matter. However, he also referenced the psychiatrist’s evidence which stated ‘’in circumstances where there is an element of dissociation due to past trauma, R may also be at times choosing not to retain the information.’’
For a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s. 3(1) of the Act and the diagnostic element of ‘impairment of, or a disturbance in the functioning of, the mind or brain’ required by s. 2(1) of the Act, i.e. for a person to lack capacity the former must result from the latter (York City Council v C [2014] 2 WLR.
As he found that R lacked capacity to make the decision, MacDonald J gave consideration to the course of action that would be in her best interests. In doing so he legitimately considered the impact on R of any adverse impact on the unborn child when taking or not taking the decision to proceed with a pre-term elective Caesarean section stating ‘’Whilst satisfied that a natural birth is the end result of a best interests analysis narrowly focused on R’s physical health and safety, when both R’s physical and psychological welfare are accounted for a different result emerges…. Given what I am satisfied would be the extremely traumatic experience for R of having to give birth to a dead child, should the appreciable risk of the baby dying before natural or induced labour can occur, become manifest, I am satisfied on balance that an elective Caesarean section is in R’s best interests.’’
He also noted that whilst R did not have the capacity to consent to the procedure, she had never expressed an objection when it was discussed with her, and he had been satisfied that she had some, although limited, understanding of what this meant, explaining to her doctor that a Caesarean section was cutting her stomach open to take out the baby.
Whilst confirming that lack of objection was not consent, MacDonald J considered this to be a supportive factor for the court’s decision as to best interests, in addition to R’s preference shown for giving birth to a live, healthy baby.
MacDonald J concluded that the court’s authorising a planned Caesarean section is a very serious interference in a woman’s personal autonomy and Article 8 rights but that as R lacked capacity to decide, and the medical treatment is in her best interests, it was appropriate to exercise the jurisdiction in this case.
R underwent an elective operation, and the baby was doing well for its gestation.
CASCAIDr Comment
The Code of Practice to the Mental Capacity Act 2005 has not been updated since it was published in 2007, and it is significantly out of date. The danger of this is that professionals, who must have regard to the Code, are often unaware of when case-law has superseded the Code and subsequently fall foul of the law. Our view is that their wish to be regarded as professionals means that they must take responsibility for their own learning and CPD if their employers are remiss in not providing legal framework updates, but we fear that the culture of reading for study purposes is largely lacking given the workload pressure.
We had been anticipating a new Code following the Mental Capacity (Amendment) Act 2019; however, with the Liberty Protection Safeguards (LPS) being delayed beyond the life of the current Parliament, it seems that professionals will be working with the out-of-date Code for some time to come.
The draft Mental Capacity Act 2005 Code of Practice was published 17 March 2022 and the consultation ran to 4 July 2022. The Department of Health and Social Care (DHSC) have advised that the responses to the consultation will be published in due course.
Whilst we await this guidance, cases such as the ‘capacity masterclass’ above from MacDonald J are invaluable in guiding practice. This case gave rise to the question ‘whether a formal diagnosis in respect of R is necessary in order for the terms of s.21(1) of the 2005 Act to be satisfied’. We find it odd that anyone should ever have thought that that could be the case, but that is because the law of incapacity which preceded the coming into force of the MCA 2005 in 2007 is necessarily known to us.
The draft Code introduces new guidance on the assumption of capacity and emphasises that assuming capacity should not be used as a reason for not assessing capacity, stating that if there is a ‘proper reason’ to doubt a person’s capacity, an assessment should be completed. We think that this is simply an emphasis that professionals discharging statutory duties are expected to have antennae which twitch when the evidence to raise a doubt as to capacity appears before their very eyes.
This is further emphasised by PC & NC v City of York Council [2013] EWCA which held that the sequence of testing set out in the existing Code of Practice is backwards in so far as law requires the functional test to be carried out before the further diagnostic hurdle.
MacDonald J identified that the strict application of diagnosis-based capacity assessments fails to take into account the complexity of the mind and brain, and the range of factors that may act to impair their functioning. In order to consider a person’s capacity, we must start by asking whether there is any reason to doubt that the person has capacity to make the decision – and failure to do this, (for instance, simply taking what a person says about how they are doing as the last word on the subject) has the potential for harm and the abandonment of large numbers of people who make unwise, unusual or out-of-character – or potentially delusional – decisions.
Dr Z, one of the witnesses, noted, “we are not good at writing capacity verbatim” and the judge agreed with that. “Given the number of capacity assessments that are required to be carried out on a daily basis in multiple arenas, it would obviously be too onerous to require a highly detailed analysis in the document in which the capacity decision is recorded. However, a careful and succinct account of the formulation of the matter to be decided and the formulation of the relevant information in respect of that matter, together with a careful and concise account of how the relevant information was conveyed and with what result” seemed to him to be the minimum required.
Finally, we would suggest that the analysis that R was potentially ‘choosing’ not to engage was an interesting approach, because repression of traumatic memories is generally understood to be an unconscious process into which the element of choice does not necessarily enter.
Further examples of MCA case-law can be found here and a useful guide to completing mental capacity assessments can be found here. This has been recently updated following this case.