University Hospitals Dorset NHS Foundation Trust & Anor v Miss K [2021] EWCOP 40

This case involved an application by University Hospitals Dorset NHS Foundation Trust and Dorset Healthcare University NHS Foundation Trust under the Mental Capacity Act 2005 for declarations that it was in Miss K’s best interests that she undergo an elective caesarean section the following day.

At the outset, Mrs Justice Lieven was very critical of the Trusts late timing of the application, the application having been made on Thursday 10 June 2021. The evidence initially suggested that the need for the application had only arisen on the Tuesday or Wednesday and had therefore been made in good time, however, by the end of the bundle, it became apparent that there was a very strong risk, at least from the previous week, that Miss K would lose capacity to give consent for the treatment proposed. Mrs Justice Lieven stated:

“In those circumstances, it was incumbent upon the Trusts to have made this application significantly earlier than today. I appreciate that these cases are very difficult, and that everyone is trying to act in good faith and in the patient’s best interests. I also appreciate that doctors and Trusts are unwilling to make these applications unless they really need to. However, as has been said in so many cases before it feels like a waste of breath, the burden of making an application at the eleventh hour ultimately falls upon the Court and the Official Solicitor.”

The Official Solicitor was instructed the day of the hearing, making it impossible for her to take any sensible view of the case, rendering her role effectively a “tick box exercise”. Mrs Justice Lieven went on to say:

“This is a waste of resources and wholly unhelpful to P’s best interests. It is also unfair on the court, that being to Mr Justice Hayden and me today, who have to deal with applications at extreme urgency.

It is not good enough for NHS Trusts to routinely say they were acting in good faith when in truth that simply becomes an exercise in burden-shifting. Here, there appears to have been a failure between the two Trusts to work together and exchange information in a helpful and appropriate manner. I will return to that in a moment. I should add on the delay point that Miss Sutton, who appears on behalf of the NHS Trusts, has appropriately apologised profusely on behalf of the Trusts for what has happened. Miss Sutton, who as always has been extremely helpful to this court has, expeditiously, produced a very helpful position statement and a draft of the final order sought, however there comes a point where apologies are not enough.”

Turning to the facts of the case, Miss K was a lady in her late thirties detained in a psychiatric intensive care unit under section 2 of the Mental Health Act 1983. She has a long history of mental illness with a diagnosis of schizophrenia. She was 37 weeks and 4 days pregnant with her first baby. She had been assessed as having neither litigation capacity, nor decision making capacity in respect of her obstetric choices.

The court decided that a planned caesarean section the following morning, having been taken to the obstetric unit by force if necessary, was in Miss K's best interests. In the event no force was necessary and Miss K was safely delivered of a baby boy.

The full judgement can be read here

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