NHS Trust 1 and Another v FG (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Keehan,Mr Justice Keehan |
| Judgment Date | 28 August 2014 |
| Neutral Citation | [2014] EWCOP 30 |
| Docket Number | Case No: COP 12505561 |
| Court | Court of Protection |
| Date | 28 August 2014 |
[2014] EWCOP 30
COURT OF PROTECTION
Royal Courts of Justice
strand, London, WC2A 2LL
The Honourable Mr Justice Keehan
Case No: COP 12505561
Ms Catherine Dobson (instructed in-house by NHS Trust 1) for the First Applicant and (instructed by Bevan Brittan LLP) for the Second Applicant
Mr Michael Horne (instructed by the Official Solicitor) for the Respondent
Hearing dates: 20 th May and 22 nd May
Introduction:
This judgment should be read with the judgment I gave on 27 June 2014 in the case of X County Council v M and Othrs [2014] EWHC 2262 (Fam).
The First Applicant Trust provided obstetric care to the Respondent, FG. The Second Applicant Trust provides psychiatric care and services to her.
The Trusts made the following applications:
i) an order sought under the Inherent Jurisdiction of the High Court that FG was not given notice of these proceedings;
ii) orders in the Court of Protection to permit the trusts to undertake various steps and measures in respect of FG's labour; and
iii) a reporting restrictions order.
The applications were heard by me in May 2014. FG was 24 years old and she was in the late stages of her first pregnancy. Her expected date of delivery was 28 May 2014.
She had been diagnosed with a mental disorder known as schizoaffective disorder. In February 2014, following a deterioration in her mental health, FG was detained at Hospital 1 under s3 of the Mental Health Act 1983. This is not the first time she has been an inpatient for psychiatric treatment.
It was the opinion of FG's treating consultant psychiatrists that she lacked insight into her mental illness and thus did not believe she required treatment for the illness. Since mid April 2014, when she came under the care of Dr BU, she has refused to take any medication resulting in a further decline in her mental state. She suffers from persecutory delusions including a belief that mental health services are 'murderers' and will murder her and her unborn child. She has marked disorder of thought form, guarding of affect and an abnormality of expressed mood, associated with marked fear and suspicion.
On 19 May 2014 Dr BU assessed FG as lacking capacity to conduct proceedings. Accordingly, at my invitation, the Official Solicitor consented to act as her litigation friend. The Official Solicitor consented to the applications made by the Trusts.
Background
On 16 May 2014 I heard an application by X County Council for permission not to disclose the care plan for the unborn child to FG and an application for a reporting restrictions order. A report by Dr BU dated 16 May 2014 was filed in support of the applications.
I was not satisfied that the evidence then before me justified the making of the orders sought. I, therefore, adjourned the hearing to 20 May 2014 and made the following directions (anonymised for the purposes of this judgment):
1. The application by X County Council for a reporting restriction order and an order not to disclose the contents of the care plan in respect of the unborn child to FG is adjourned to Tuesday 20 May 2014, matter reserved to The Honourable Mr Justice Keehan sitting at The Royal Court of Justice, Strand, London at 10.30am
2. The Official Solicitor is invited to attend the above adjourned hearing either as litigation friend or as Advocate to the Court (depending upon the outcome of 3 below)
3. The court directs as a matter of urgency and by 4pm 19 May 2014, the Health Authority is to assess FG's capacity to
(i) Litigate
(ii) Consent to medical treatment which shall include consent to sedation, anaesthesia, restraint (if necessary), administration of psychotropic medication and to have a Caesarean section performed
(iii) A short statement by Dr BU or her nominee, setting out, on the balance of probabilities, her professional opinion on the effect on FG in the event that the details of the proposed care plan are communicated to FG prior to the birth
And files with the court the requisite completed forms and statement by 4pm 19 May 2014
4. In the event that FG does not have capacity in relation to any of the above, the health authority/trust is to, by 4pm 19 May, make an application to the Court of Protection
5. In the event that the health authority/trust does not file the completed assessment as to capacity referred to in paragraph 3 above and/or, if the completed assessment concludes that FG does not have capacity, and the health authority/trust does not make an application to the Court of Protection, then the Chief Executive of the relevant Health Trust is to attend before Mr Justice Keehan at 10.30 am on 20 May 2014 at the Royal Courts of Justice, Strand, London whereupon if the court is satisfied that there has been non-compliance with this order without good cause, the court may make costs orders against the relevant health authority/Trust.
On 20 May I had the following additional documents:
i) a report by Dr BU dated 19 May 2014;
ii) a certificate as to capacity to conduct litigation completed by Dr BU dated 19 May 2014;
iii) a COP3 assessment of capacity completed by Dr BU dated 19 May 2014; and
iv) A report by HA, FG's treating consultant obstetrician and gynaecologist, dated 20 May 2014.
On the basis of the evidence before me, I granted the local authority's applications for permission not to disclose the care plan to FG and made a reporting restrictions order.
I was satisfied that FG lacked capacity to litigate. Accordingly I appointed the Official Solicitor to act as her litigation friend in these proceedings brought by the Trusts.
The initial stance of the Trusts at the hearing on 20 May 2014 was that there was no need to issue proceedings in the Court of Protection concerning FG's impending labour. The Official Solicitor expressed concern about:
i) how the Trusts proposed to care for and treat FG before, during, and after she gave birth given the opinion of Miss HA that she lacked capacity to make decisions about her welfare and her medical treatment; and
ii) the legal basis upon which, in those circumstances, the Trusts would treat FG when she went into labour.
In light of submissions made on behalf of the Official Solicitor about the adequacy of the evidence before the court, I adjourned the trusts applications to 22 May 2104. I made various agreed directions for the disclosure of FG's medical records to the Official Solicitor and for the filing and serving of further reports by FG's treating clinicians.
At the hearing on 22 May 2014 I had a further report from Miss HA dated 21 May 2014. Unfortunately Dr BU had been taken ill, however in her stead Dr BZ prepared a comprehensive report dated 21 May 2014. He had been FG's treating consultant psychiatrist between 3 February and 12 April when her care was transferred to Dr BU. Dr BZ examined FG on 21 May for the purposes of preparing his report.
As a result of the opinions and recommendations expressed in those reports, the Trusts changed their position and sought permission for various medical procedures and steps to be undertaken if necessary when FG went into labour: see paragraph 17 below.
The orders sought by the Trusts for the medical care and treatment of the mother were as follows (anonymised for the purposes of this judgment):
1. Notwithstanding FG's lack of capacity to consent thereto, it is lawful and in her best interests, for her
a. to be transferred from Hospital 1 to the maternity unit at Hospital 2
i. if clinicians from either Applicant suspect that she is or may be in spontaneous labour; or
ii. for induction of labour on a date to be determined in the Applicants' clinicians' clinical judgment;
b. to receive such obstetric, midwifery and anaesthetic care in the maternity unit at Hospital 2 as is deemed appropriate in the clinical judgment of the clinicians caring for her, to be guided by Care Plan A and Care Plan B redacted copies of which are annexed hereto, and to include but not be limited to
i. formal examination and diagnostic assessment;
ii. monitoring both the condition of FG and the foetus;
iii. the taking of blood samples for testing,
iv. the insertion of needles for the purpose of intravenous access;
v. the administration of any medications necessary to induce labour;
vi. vaginal delivery;
vii. instrumental or operative delivery;
viii. analgesia;
ix. anaesthesia including if necessary, general anaesthesia;
x. pre-, peri, and post-operative medical care associated with such treatment;
xi. associated post-natal care;
c. to be returned to Hospital 1, at times deemed appropriate by the relevant clinicians;
d. to receive such medical care as is clinically appropriate during the transfers referred to at paragraphs (a) and (c) above;
2. It is lawful, being in FG's best interests, for the Applicants' staff to use reasonable and proportionate measures, including those which involve physical or medical restraint and a deprivation of liberty, to facilitate the transfers between Hospital 1 and the maternity unit at Hospital 2 referred to in paragraphs 2(a) and (c) above and to provide or facilitate any clinically appropriate medical treatment during such transfers.
3. It is lawful, being in FG's best interests, for the Applicants' staff to use reasonable and proportionate measures in accordance with Care Plan A or Care Plan B, including those which constitute a deprivation of her liberty, to facilitate the treatment referred to at paragraph 2(b) above, including those which involve physical or medical restraint and a deprivation of liberty.
4. Any deprivation of FG's liberty additional to that imposed by her detention under the ss.3 and 17 of the Mental Health Act 1983 and...
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