North Middlesex University Hospital NHS Trust v MB (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 08 June 2023 |
| Neutral Citation | [2023] EWCOP 23 |
| Court | Court of Protection |
| Docket Number | Case No: 1408575T |
[2023] EWCOP 23
THE HONOURABLE Mrs Justice Roberts
Case No: 1408575T
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Conrad Hallin (instructed by Capsticks LLP) for the Applicants
Ms Elizabeth Fox (instructed by the Official Solicitor) for the Respondent
Hearing date: 22 May 2023
MB is a 26 year-old woman who is 37 weeks pregnant and due to give birth to her first child within the next fortnight. She is currently detained in Hospital A pursuant to section 3 of the Mental Health Act 1983 having been admitted there on 14 March 2023. These proceedings concern an application in relation to serious medical treatment, namely the birth plan which is to be put in place to ensure the safety and wellbeing of both mother and baby during the delivery process. As part of that plan the court is being asked to authorise a planned Caesarean section should that become necessary at any stage of MB's labour. It is agreed in this case that MB currently lacks capacity to make informed and considered choices about how her unborn child is to be brought into this world. Since that proposed surgical intervention and the administration of anaesthesia would potentially represent an interference with fundamental human freedoms and the right to choose whether to consent to serious medical treatment, the court is being asked to authorise that course as being in MB's best interests.
This application was issued by the Trusts on 16 May 2023. The matter came before Knowles J on 18 May 2023 when it was listed for an urgent hearing before me today. The issues to be determined were stated to be (i) whether MB lacks capacity to make decisions regarding her obstetric care, and, if so, (ii) what care plan is in her best interests.
On behalf of the respondent, Ms Fox has criticised the manner in which this application has been brought. In my view, those criticisms were justified. When the application was issued on 16 May, it was envisaged that MB's child would be delivered by Caesarean section the following week on Wednesday, 24 May. There was no supporting witness statement to explain the background, context or urgency of the application. MB had by then been a patient at Hospital A for almost nine weeks. It was clear to those charged with her ante-natal care that this was a rapidly evolving situation both in terms of evaluating capacity and deciding upon an appropriate birth plan. It is not clear to me why this application was made without sufficient notice to enable the Official Solicitor to carry out her enquiries with proper information and without the pressure of court deadlines. This was not a case of a genuine medical emergency. As it was, the Official Solicitor was obliged to instruct Dr M to assess, and report on, MB's capacity both to conduct court proceedings and make decisions about the birth of her child within the space of 48 hours. Dr M was able to attend Hospital A last Friday and prepared her report over the weekend. She has attended court today to assist the court, as have two professional witnesses for the Trusts. Whilst the evidence of all three medical witnesses has been of assistance to me, I can see no good reason why this application could not have been issued much sooner and in accordance with the clear guidance set out in NHS Trust 1 and NHS Trust 2 v FG [2014] EWCOP 30, [2015] 1 WLR 1984.
The Law
Since capacity is not an issue before the court today for reasons I shall explain, I propose to deal with the legal framework in relatively short order.
The starting point is the legal presumption that a person should be entitled to make decisions about his or her medical treatment even if those decisions are contrary to medical advice and/or likely to lead to harm or even death. A doctor is not entitled to administer treatment or operate upon an adult patient of sound mind without that patient's consent since it is that consent which makes lawful what would otherwise amount to an assault: see In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.
That presumption of capacity now has a statutory basis in law: see s. 1(2) Mental Capacity Act 2005 (“MCA”).
There are three circumstances in which adults can have treatment imposed upon them without first securing their consent. The first arises where that person lacks capacity to make the relevant decision under the MCA. The second is where a person is detained under the Mental Health Act 1983 and the proposed course of treatment is designed to address the mental disorder from which he or she is suffering 1. The third arises where a person is categorised as “vulnerable” for the purposes of the engagement of the High Court's inherent jurisdiction: A Local Health Board v JK [2019] EWHC 67 (Fam).
The statutory code is now embodied in sections 1 to 3 of the MCA 2005 which provide as follows:-
1. The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
….
2. People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to –
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
….
3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of –
(a) deciding one way or another, or
(b) failing to make the decision.
Determination of capacity is both ‘decision specific’ and ‘time specific’. Where a person's capacity to make decisions may fluctuate over a period of time with episodes, or ‘snapshots’, of lucidity, the issue of capacity must always be assessed in relation to the specific decision which the court is considering at the specific time when the decision needs to be made.
In relation to s.3(1) MCA, an inability to undertake any one of these four aspects of the decision making process is sufficient for a finding of incapacity provided that the court is satisfied that such inability arises as a result of an impairment of, or a disturbance in the functioning of, the mind or brain. Thus it must be the mental disorder captured within s. 2 of the Act which is the cause of a person's inability to make the relevant decision for himself or herself.
Best interests
In circumstances where the court reaches a conclusion based upon expert medical or other evidence that a person lacks the necessary capacity to make autonomous decisions for him- or herself, it must then consider whether the proposed course of treatment, as here, is in that person's best interests. For these purposes, s. 4 of the MCA provides the statutory framework to guide and shape that determination. For the purposes of the present application, and MB's particular circumstances, these specific matters will be engaged:-
(i) the extent to which MB will at some time have capacity in relation to the matter in question and, if it appears likely that she will, when that is likely to be: s. 4(3) MCA. The MCA Code of Practice makes provision for the postponement of a decision if capacity is likely to be regained in the foreseeable future (para 3.14) but that is qualified by para 4.27 which confirms that an assessment of capacity must be determined in relation to a particular decision at the time when it needs to be made;
(ii) MB's past and present views, her wishes and her feelings will be a relevant factor in any best interests decision. In particular, any written statements or consents made, or given, at a time when she had capacity may carry weight in a best interests determination: s.4(6)(a) MCA;
(iii) So far as reasonably practicable, and where the court considers it appropriate, MB must be permitted and encouraged to participate in any decision which affects her: s.4(4) MCA. In this case, I am satisfied that every opportunity has been afforded to MB to date, including an invitation to attend this hearing remotely. Whilst the link was set up in a...
To continue reading
Request your trial