Court offers guidance on legal framework applying to anticipatory declarations (An NHS Foundation Trust and another v R)

An NHS Foundation Trust and another v R [2020] EWCOP 4, [2020] All ER (D) 07 (Feb)

Private Client analysis: The judgment considers the correct legal framework to apply where a person before the Court of Protection has capacity to make decisions regarding their medical treatment but could lose that capacity under certain circumstances. Rhys Hadden examines the case.

What are the practical implications of this case?

The judgment deals with a number of different issues in relation to serious medical treatment cases, particularly in cases involving obstetric care and Caesarean sections.

The central focus of the decision is concerned with identifying the correct legal framework to be applied where the Court of Protection is confronted with the position that the person before it currently has capacity to make the relevant decision(s) but there is clear evidence that under some circumstances they may not do.

What was the background?

This case concerned the obstetric treatment of ‘R’ who was 39 weeks and six days into pregnancy. R had bipolar affective disorder, which was characterised by psychotic episodes. Proceedings were commenced by two NHS trusts as joint applicants. R had been detained in a psychiatric ward that fell within the jurisdiction of the second applicant, the South London and Maudsley NHS Foundation Trust (SLAM). The first applicant, Guys and St Thomas’ NHS Foundation Trust (GSTT), was the trust responsible for R’s obstetric care.

All the treating clinicians were agreed on the following: R had capacity to make decisions as to her antenatal and obstetric care—there was a substantial risk of a deterioration in her mental health, such that she would be likely to lose capacity during labour—there was a risk to her physical health, in that she could require an urgent Caesarean section for the safe delivery of her baby but might resist. R was reported as having said that a Caesarean section would be ‘the last thing she would want’.

Given that R might have entered labour at any moment, on 30 August 2019 the Vice President of the Court of Protection, Mr Justice Hayden, delivered a short ex tempore judgment. He made declarations under the Mental Capacity Act 2005 (MCA 2005) and the inherent jurisdiction, which declared it to be lawful for the NHS Trusts to deliver care and treatment to R, namely an urgent C-section and authorised a deprivation of liberty.

As it transpired, R did not give birth until 8 September 2019. She was cooperative throughout the labour and her healthy child was born by spontaneous vertex vaginal birth. There was, as it transpired and as R had always asserted would be the case, despite the cogent medical concerns, no need for a Caesarean.

What did the court decide?

Given the draconian nature of these types of decisions and the lack of clarity about whether they fell properly within the structure of MCA 2005 and/or required the inherent jurisdiction of the High Court, Hayden J handed down a written judgment setting out a much fuller consideration of the applicable legal framework.

The judgment is wide-ranging and complex but three key principles emerge:

it is never proper for the court to make a decision under MCA 2005, s 16 in respect of a person who currently has capacity. As a matter of statutory construction, Hayden J identified that the wording of MCA 2005, s 16(1) expressly curtails the scope of the section to individuals who lack capacity. By implication, the court cannot then exercise a jurisdiction under MCA 2005, s 16 in respect of a person who does not lack capacity to take a particular decision but who may lose capacity on some future contingency. This would contravene the founding principle of MCA 2005, s 1(3) (ie that a person is not to be treated as unable to make a decision unless all practical steps have been taken to help him to do so without success). Logically, such steps could not have been taken with an individual who remained capacitous at the time of the application
by contrast, there was no such limitation on the court to make a declaration under MCA 2005, s 15(1)(c), so that the court is able to declare whether an act ‘yet to be done’ in relation to a person who currently has capacity to make the decision will be lawful or not. Any declaration relating to an act ‘yet to be done’ has to contemplate a factual scenario occurring at some future point
the power to make declarations of lawfulness under MCA 2005, s 15(1)(c) does not extend to authorisation of deprivation of liberty. MCA 2005 limits the circumstances under which it can be used for these purposes. However, citing the decision of An NHS Trust v Dr A [2013] EWHC 2422 (COP), Hayden J held that it would be lawful to use the inherent jurisdiction to authorise a deprivation of liberty in such circumstances because the wording of MCA 2005 would otherwise leave a gap

Hayden J made a couple of other observations worth noting. Firstly, the judge contemplated that it would be possible for a woman to make an advance decision to refuse a C-section which would be binding on the court. Second, the case re-emphasised the need for clear and timely planning by NHS bodies, particularly in cases involving obstetric care and C-sections, referring to the guidance given by Keehan J in NHS Trust & others v FG [2014] EWCOP 30, [2014] All ER (D) 161 (Aug). In such cases, there was a need for a clear and informed birth plan which identified the support required so that it could be reviewed by the court in a way which also allowed for proper scrutiny by those representing the person involved. There was also need for a fully transparent process given the fundamental rights and freedoms that were engaged. These requirements were a facet of the rights of all involved under Article 6 of the European Convention on Human Rights. A failure to plan in a careful and properly informed manner might jeopardise the health and even the lives of the mother and the unborn baby. The court would therefore need to be involved in a way that anticipated, rather than reacted to, a crisis or emergency.

Case details

Court: The Court of Protection
Judge: The Hon Mr Justice Hayden, Vice President of the Court of Protection
Date of judgment: 29 January 2020

Rhys Hadden is regularly instructed in complex cases in the Court of Protection where capacity is in dispute or raise novel legal issues. He also frequently deals with cases under the inherent jurisdiction of the High Court or that overlap with public law challenges in the Administrative Court. He is regularly instructed by the Official Solicitor, NHS trusts, local authorities and family members.

In An NHS Foundation Trust and another v R, Bridget Dolan QC and Sophia Roper of Serjeants’ Inn were counsel for the applicants.

This article was first published on Lexis®PSL Private Client on 14 February 2020.