United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24

This was an application by the NHS Trust concerning the medical treatment of P, a 27-year old woman, detained pursuant to section 3 of the Mental Health Act 1983. P was 35 weeks pregnant and the NHS Trust were applying to the Court to make an anticipatory and contingent declaration, in relation to the birth plan, in the event P became incapacitated during the course of her labour.

The particular issue in this case was that P’s treating clinicians agreed she did not currently lack capacity to make decisions in respect of the birth, treatment and necessary procedures in connection therewith.  However, based on her past history, it was agreed there was a substantial risk P may become incapacitated at a crucial point in her labour.  P’s treating consultant psychiatrist had acknowledged that P’s presentation was “variable” and stated it was possible that “during labour her delusional beliefs may affect her judgment and she may again lose capacity to make decisions about the delivery for herself.”  It was agreed between P’s treating clinicians that once P’s waters had broken there would be insufficient time to make a renewed application.

In addition, P suffered from polyhydramnios, which meant she was at risk of cord prolapse and malpresentation.  P’s treating consultant obstetrician and gynaecologist stated that in both cases (i.e. cord prolapse and malpresentation) there was a risk of psychological impact on P and that the very real risk for the baby in both scenarios was death.

The application was successful.  Mr Justice Francis stipulated that every possible step should be taken to act in P’s best interests and promote her welfare and that part of that process was to protect her unborn child.  Whilst it was acknowledged that the unborn child’s best interests could not be taken into account per se, it was apparent from the evidence that the loss of the baby would have a profound negative impact on P.

Mr Justice Francis considered the range of orders that could be made in this case and the provisions of the Mental Capacity Act 2005.  He noted that the court did not have power to make an order pursuant to section 16(2), because the principle enunciated in section 16(1), namely incapacity, was not satisfied.  However, he referred to the substantial risk that was present to the welfare and life of P and her unborn child if he failed to address the matter and concluded that in exceptional circumstances, the court has the power to make an anticipatory declaration of lawfulness, contingent on P losing capacity, pursuant to 15 (1)(c).

He also concluded that in making such an anticipatory or peremptory order in such urgent cases, it is necessary to make it in the declaration itself rather than in the wording of a long judgment.

The full judgment can be read here

If you have any questions regarding this summary case law please contact Michelle here

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