Guys and St Thomas' NHS Foundation Trust (GSTT) v R
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] EWCOP 4 |
| Date | 29 January 2020 |
| Docket Number | Case No: 13490075 |
| Court | Court of Protection |
[2020] EWCOP 4
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13490075
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Sophia Roper and Ms Bridget Dolan QC (instructed by Hill Dickinson LLP & Bevan Brittan) for the Applicant
Mr Parishil Patel QC (instructed by Official Solicitor) as Advocate to the Court. The
Respondent did not appear and was not represented
Hearing date: 25 th October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
On the 30 th August 2019, I heard an application, in the Urgent Applications List, brought jointly by Guys and St Thomas's NHS Foundation Trust (GSTT) and the South London and Maudsley NHS Foundation Trust (SLAM). The case concerned the obstetric treatment of R who, on 30 th August 2019, was 39 weeks and six days in to her pregnancy. R has a diagnosis of Bipolar Affective Disorder which is characterised by psychotic episodes. R was detained in a psychiatric ward which fell within the jurisdiction of the second applicant (SLAM). The first applicant (GSTT) is the Trust responsible for R's obstetric care.
Given that R might have entered labour at any moment, I gave my decision in an extempore judgment. Some key facts of the case require to be stated plainly. All the treating clinicians agreed: R had capacity to make decisions as to her ante-natal and obstetric care; there was a substantial risk of a deterioration in R's mental health, such that she would likely lose capacity during labour; there was a risk to her physical health, in that she could require an urgent Caesarean section (‘C-section’) for the safe delivery of her baby but might resist.
For completeness, I should record that the relevant evidence as to capacity incorporated the following: short capacity assessments on 19 th June 2019 and 3 rd July 2019 in the SLAM medical records, both stating that R had capacity to consent to or decline antenatal care; a statement by Dr Walker-Tilley, a Consultant Psychiatrist from SLAM, stating his view that R remained capacitous as of 22 nd August 2019, and setting out the evidence in support of the Trusts' case that there was a high risk of R losing capacity in labour; a statement by Dr Clarke, Consultant Obstetrician at GSTT, confirming her agreement with Dr Walker-Tilley. This factual situation i.e. a capacitous woman who is likely to become incapacitous, during the course of labour is relatively unusual but it is not unprecedented.
The evaluation of the obstetric risk was analysed in the report of Dr Clarke. R was suffering from polyhydramnios (excess amniotic fluid round the baby); her baby was large, and it was uncertain whether the baby would present head down or be in a transverse, breech, or unstable presentation. These factors all increased the obstetric risks: continuous monitoring was recommended, and there was a real risk that C-section would be necessary to ensure the safe delivery of the baby. There was also a manifest risk of non-cooperation or resistance by R if the baby required delivery urgently. It is unnecessary for me to identify the particulars of that evidence here, other than to say it was well established by R's earlier behaviours. If a C-section were then to be recommended, it might be required in minutes. Dr Clarke's statement included the proposed plan for delivery of the baby, exhibiting an obstetric plan and a plan to manage any physical restraint.
Self-evidently, the Court was in the entirely invidious position of having to determine applications which have an obviously draconian complexion to them, in circumstances which were far from ideal. Moreover, R was unrepresented. Mr Patel QC and his instructing solicitor had stepped in, to seek to protect R's interests. I appointed Mr Patel to act as ‘Advocate to the Court’. Neither he nor his solicitor was representing R. The role of Advocate to the Court involves very different obligations and is not to be conflated with the role of the Official Solicitor as litigation friend.
There had not been time to appoint the Official Solicitor nor, for obvious reasons, was there any opportunity to do so. However, self-evidently, a decision had to be made. I was satisfied that the application was well founded and that the declarations contended for met R's best interests. I do however deprecate the delay in bringing the application. The delay was avoidable but perhaps not so starkly so as first appeared. It became clear to the applicants, only ten days before the August hearing, that R had stopped taking her anti-psychotic medication. This manifestly required a re-evaluation of the risk and the need to reassess the birth plan.
On 30 th August 2019, I made the following declarations:
“ IT IS DECLARED PURSUANT TO S.15 MCA AND PURSUANT TO THE INHERENT JURISDICTION OF THE HIGH COURT THAT:
(1) The Respondent has, at the present time, mental capacity to make decisions regarding her obstetric care and the delivery of her baby;
and it is declared pursuant to S.15 MCA in the event that the respondent should come to lack the capacity to make decisions about her obstetric care, and, in any event pursuant to the inherent jurisdiction of the High Court that:
(2) It is lawful for the Applicants to deliver care and treatment to her in accordance with the obstetric care plan annexed to this Order;
(3) To the extent that the arrangements set out in the care plan amount to a deprivation of the Respondent's liberty, this is authorised, providing always that any measures used to facilitate or provide the arrangements shall be the minimum necessary to protect the safety of the Respondent and those involved in her transfer and treatment; and that all reasonable and proportionate steps are taken to minimise distress to the Respondent and to maintain her dignity.”
Whilst I was persuaded, as I have said above, of the need to make such declarations, I was uncertain as to whether fell properly within the structure of the Mental Capacity Act 2005 (MCA) and/or which required the inherent jurisdiction of the High Court to be invoked. Francis J, confronted with a not dissimilar situation in United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24, looked at the Court's power to make anticipatory declarations pursuant to section 15(1)(c) MCA. At para 16 (iii), he observed:
“I acknowledge that I am not currently empowered to make an order pursuant to section 16(2) because the principle enunciated in section 16(1), namely incapacity, is not yet made out. However, as I have already said, there is a substantial risk that if I fail to address the matter now I could put the welfare, and even the life, of CD at risk and would also put the life of her as yet undelivered baby at risk. As I have said, I am not prepared to take that risk. I am prepared to find that, in exceptional circumstances, the court has power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to section 15(1)(c)”
Recognising that this assertion might not establish the jurisdiction of the MCA beyond peradventure, Francis J made the following observations as to the likely reach of the Court's inherent jurisdictional powers:
“I have already explained above, as I suggest is obvious, that I must work within the [MCA] if at all possible. However, were it necessary for me to say that the unusual circumstances of this case are not covered by the Act, I would have no hesitation in making an order pursuant to the inherent jurisdiction if faced with a situation where the choice is to make such an order or to risk life itself”
In Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam) Cobb J followed the approach of Francis J. He did so in circumstances where all the parties agreed that he ‘could or should’ make anticipatory declarations about ‘residence and/or care (and if appropriate his best interests) pursuant to sections 15 and 16 of the MCA 2005, to cover occasions when [P] has ‘meltdowns’ and is at that point (it is agreed) unable to make capacitous decisions’. Cobb J also observed: ‘It seems to me that the outcome of an anticipatory declaration would provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability’. The scope and ambit of the applicable law appears to have been agreed between the parties, who were understandably driven by the powerful welfare imperatives in the case. Cobb J did not, however, have the advantage of the focused legal argument that has been provided to me by Mr Patel, who continues to act as Advocate to the Court and Ms Dolan QC and Ms Roper who appear on behalf of the applicants.
Following my ex tempore judgment of 30 th August 2019 and for reasons that are clear from the above passages, I directed further written submissions to be filed in order that I could properly identify the framework of the applicable law with greater clarity. It is axiomatic that if anticipatory declarations are to be made...
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