https://www.bailii.org/ew/cases/EWCOP/2023/25.html
The Trust, upon bringing this case, sought a reporting restrictions order given the exceptionally private and personal nature of a case concerning serious medical treatment. The Judge undertook a balancing exercise of Article 8 and Article 10 of the ECHR and was satisfied that a reporting restrictions order should be made, and the pseudonym Amira was given to the Respondent.
Amira, a 25-year-old woman living with a diagnosis of hebephrenic schizophrenia, was pregnant to term with her first child on the day of the case hearing. The case surrounded her obstetric care and her capacity to make decisions about the healthy and safe delivery of her child.
Amira had had contact with mental health services for the past decade. Her first psychiatric hospital admission was in 2019, and she had been in and out of hospital since then. Amira’s most recent hospital admission was in January 2023, under section 131 of the Mental Health Act 1983 (MHA). [Section 131 covers the informal admission of patients. This means that patients can be admitted for care and treatment without formal restrictions.] For this admission, Amira was transferred to hospital from prison where she had been remanded since October 2022 for an offence of actual bodily harm.
Amira was recorded by the professionals working with her as compliant with her medication, and her symptoms had been, until shortly before the hearing, well controlled.
The Trust made an application to the Court that, whilst at the time of application, Amira had capacity to make decisions about her medical care and to conduct court proceedings, it was believed that as her due date approached, she would lose capacity in both areas. This judgement was based on Amira’s medical history, where she had suffered relapses of her illness resulting in ‘’physical aggression, emotional dysregulation, and hallucinations’’.
The Trust’s application sought a declaration from the court that at a time when Amira would lose capacity to make decisions about her obstetric care, it would be lawful, and in her best interests, to be treated in accordance with the Trust’s care plan. This care plan was co-produced by the Trust and Amira at a time when she had capacity to make such decisions and set out four options for delivery of the child, in order of preference for Amira.
The day before the hearing, medical opinion as to Amira’s capacity changed, assessing her as lacking capacity to make decisions about her medical care and to conduct proceedings. Accordingly, the Trust amended its application to the Court and the determinations for the Judge were as follows:
- whether Amira lacked capacity, both to conduct proceedings and to make decisions about her obstetric care;
- whether it was lawful and in Amira’s best interests to treat her in accordance with the Trust’s care plan; and
- whether it was lawful and in Amira’s best interests to be restrained, if necessary to give effect to the Trust’s care plan, and whether the court should authorise a deprivation of Amira’s liberty in this regard.
What was considered
The original application
The Trust applied to the Court on 26 May 2023 seeking the following:
- A contingent declaration under section 15(1)(c) Mental Capacity Act 2005 that, in the event that Amira loses her capacity to make decisions about her obstetric care during labour, delivery and/or the postpartum period, it shall be lawful and in her best interests to be treated in accordance with the care plan;
- A contingent declaration under the inherent jurisdiction of the High Court that, in the event that Amira loses her capacity to make decisions about her obstetric care during labour, delivery and/or the postpartum period, it shall be lawful and in her best interests to be restrained and/or otherwise deprived of her liberty so as to give effect to the declaration made above.
It based its application on similar cases where anticipatory orders had been made in respect of persons who were capacitous at the time the order was made, namely Guys and St Thomas NHS Foundation Trust & Anor v R [2020] EWCOP 4; United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24; and North Middlesex University Hospital NHS Trust v SR [2021] EWCOP 58.
The Judge in this case paid respect to the judges who had presided over the cases above, but questioned whether they could lawfully make the requested determinations under the Mental Capacity Act 2005 (MCA). The MCA explicitly states that it is ‘’An Act to make new provision relating to persons who lack capacity’’. The Judge went to break down the language used within the Act, specifically its first principle: ‘’a person must be assumed to have capacity unless it is established that he or she lacks capacity’’, stating that the verb ‘lack’ applies only in the present tense without any future subjunctive alternative i.e., it does not state that ‘’a person must be assumed to have capacity unless it is established that he or she lacks, or were to later lack, capacity’’.
The Judge went on to say that ss.5 & 6 of the MCA address the situation where emergency care or treatment is required. Section 5 of the MCA defines the circumstances in which care or treatment can be given to a person lacking capacity to consent to that care or treatment without incurring liability. It does not give power to act in and of itself, but allows for protection from legal liability when:
- Reasonable steps have been taken to determine whether the person (P) lacks capacity in relation to their care and treatment, including singular aspects of this, and
- It is reasonably believed that the act to be undertaken is in P’s best interests.
If these two things are established then the person is considered, in law, to have consented to the care or treatment being given, and if the person or establishment providing that care or treatment is neither negligent nor criminal in its undertaking of the action, they will be protected from legal liability.
The Judge further went on to state that Section 48 allows for an interim order to be made where there is ‘’reason to believe’’ the person lacks capacity and there is confidence that incapacity will be found at the hearing. Therefore, the Judge concluded that there was no need for an application for a pre-emptive order under Section 15 [the power of the court to make declarations], as there is satisfactory provision and power within existing legislation. Moreover, the Court of Protection had no jurisdiction to make either requested declaration because Amira had capacity at the time of the request.
The second application
When it was considered that Amira lacked capacity the day before the hearing, the Official Solicitor (OS) was instructed. It raised concerns that it was at a disadvantage because the Trust had delayed bringing its application, and that it did not have time to commission independent evidence. The evidence the OS therefore relied upon was a report from Amira’s treating psychiatrist, dated 8 March 2023 which identified that Amira had capacity in both areas at that time. This was confirmed on 19 and 26 May through witness statements and the Trust’s application.
The Judge stated that the Trust could not have brought the application earlier, as Amira would have had capacity to make the decisions about her medical care, and the case therefore would not have been a valid issue for the Court of Protection to decide, thus invalidating any claim that the Trust had been negligent in its timing of the application.
It being the case that all parties agreed that Amira lacked capacity on the date of the hearing, the Judge was left to consider under section 15:
- whether Amira lacked capacity, both to conduct proceedings and to make decisions about her obstetric care;
- whether it was lawful and in Amira’s best interests to treat her in accordance with the Trust’s care plan; and
- whether it was lawful and in Amira’s best interests to be restrained, if necessary to give effect to the Trust’s care plan, and whether the court should authorise a deprivation of Amira’s liberty in this regard.
and whether an order would be made under section 16(2) and section 48 [an interim order where there is reason to believe a person lacks capacity].
The Judge considered the medical evidence and was satisfied that, on the balance of probabilities [Section 2(4)] Amira lacked capacity to make decisions in relation to her obstetric care and to conduct litigation on the same issue. Being assured of this, he went on to consider Amira’s best interests under Section 4. In doing so, the Judge had regard to the relevant circumstances, including:
- ‘’The strong presumption that it is in a person’s best interests to stay alive, and that therefore it is not normally in someone’s best interests to engage in risky conduct that imperils life;
- Amira’s own wishes and feelings;
- Amira’s overall prognosis;
- The views of Amira’s treating clinicians of her best interests.’’
The Judge found that there was no evidence that Amira would have wished to be exposed to risks that would threaten the life of herself, nor her child, and further found that the Trust’s care plan was fully consistent with her wishes and feelings, as she was an equal participant in its formulation.
The Judge was fully satisfied that Amira was to be treated in accordance with the Trust’s care plan, and that this was in her best interests.
Comment
This is an interesting case whereby legal and Trust hospital custom and practice has led to an application being made to the Court which the judge found to be simply unnecessary. The judge’s position was that if she deteriorated and a medical professional concluded that she lacked capacity at that point then any such opinion would unquestionably satisfy the terms of s. 5(1) and 6 (and if the restraint amounted to a deprivation of liberty, s.4B also) thereby giving an obstetric team a complete defence to any later complaint by Amira that she had been the victim of battery or trespass to the person.
Mostyn J was at a loss as to why the ss 4B, 5 and 6 route to obtain immunity from a later complaint by P about an act done in connection with one’s care or treatment is not routinely used. It is specifically legislated for in the Act. In contrast, he said, the device of an anticipatory declaration under s. 15(1)(c) is directly contrary not only to the wording of the Act, but also to its essential scheme. “This route appears to have fallen into disuse (if it was ever in fact used) but it seems to me to be the route which Parliament intended to be used in such circumstances.”
We understand the desire of statutory bodies to ensure they are practising in line with the law but a better understanding of the law would reduce unnecessary calls on the Court’s time.