Oxford University Hospitals NHS Foundation Trust v Z (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWCOP 20 |
| Date | 03 April 2020 |
| Docket Number | Case No: COP13583042 |
| Court | Court of Protection |
[2020] EWCOP 20
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF Z
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Knowles
Case No: COP13583042
Claire Watson (instructed by Hill Dickinson LLP) for the Applicant
Bridget Dolan QC (instructed by the Official Solicitor) for Z
Hearing dates: 27 March 2020
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.
This judgment was delivered in public and is published in accordance the with terms of the Transparency Order dated 27 March 2020
Introduction
This application concerns a young woman aged 22 years who I will call Z in this judgment. She has a rare chromosomal abnormality syndrome, known as “chromosome 17q12 microdeletion”, as a consequence of which she suffers from cognitive impairment and a bicornate (or heart-shaped) uterus.
Z is currently 35 weeks pregnant with an estimated due date of 30 April 2020. This is her fifth pregnancy. Of her four children, one sadly died when only 6 days old and her other three children have been taken into care. Z developed complications in all her previous pregnancies and this pregnancy is considered to be medically high risk. Due to her bicornate uterus, Z is at risk of preterm birth and fetal malpresentation. Given these risk factors, Z has been booked to deliver her baby by caesarean section on 3 April 2020.
Z has a mild learning disability with an assessed IQ in the range 60–69. She has been assessed to have capacity to make decisions about her ante-natal care generally and her mode of delivery specifically. In addition to her learning disability, Z has poorly controlled gestational diabetes, anaemia and a severe vitamin D deficiency.
This application was made because Oxfordshire University Hospitals NHS Foundation Trust [“the Trust”] considered that Z lacked the capacity to make decisions about contraception and, in view of her obstetric history and current presentation, her treating team considered that it was in Z's best interests to have an intrauterine contraceptive device inserted at the time of her caesarean section in order both to reduce the risk of an unplanned future pregnancy and to enable family spacing.
This application was not opposed by the Official Solicitor who acts on Z's behalf as her litigation friend.
This application came before me for directions on 20 March 2020. I listed it for an urgent hearing on 27 March 2020. In the light of the crisis caused by the Covid-19 pandemic, that hearing was heard remotely using video-conferencing facilities. Notwithstanding this method of hearing, I provided that the hearing could be attended by the press so that it remained a public hearing as is the custom in the Court of Protection.
I am very grateful to counsel and to their respective legal teams for making the arrangements so that this hearing could take place urgently. Their co-operation in the conduct of the hearing and in their focussed submissions made my judicial task a great deal easier. Given the late stage of Z's pregnancy and the agreement between the parties, I give a short ex tempore judgment and, at the invitation of the parties, I revised that judgment so that it might be publicly available. By a transparency order dated 20 March 2020, I provided that neither Z nor those directly involved in her treatment or care should be identified and this judgment has been written accordingly.
I read the following material which included the position statements of both parties:
a) a capacity assessment of Z by Dr A, consultant psychiatrist;
b) two witness statements dated 18 March 2020 and 23 March 2020 from Dr B, consultant obstetrician and subspecialist in fetal and maternal medicine;
c) a witness statement dated 23 March 2020 from Dr A;
d) a witness statement dated 24 March 2020 from KB, a solicitor in the Official Solicitor's office;
e) a witness statement dated 26 March 2020 from Z's IMCA, Ms C;
f) the report of Dr Camden-Smith, consultant psychiatrist instructed by the Official Solicitor, dated 26 March 2020;
g) and the report of Professor Walker, Professor of Obstetrics and Gynaecology, dated 26 March 2020.
Z's Participation in the Hearing
On 24 March 2020, KB from the Official Solicitor's office made contact by telephone with Z. It was not possible for KB to meet with Z as, being heavily pregnant, Z was self-isolating in response to the threat of Covid-19. Z told KB during their telephone conversation that she would like to be present during the hearing and arrangements were made for KB to speak to her later in the week about the practicalities of joining a remote hearing.
Following KB's conversation with Z, efforts were made by both KB and the Trust, including further telephone calls with Z, to put in place arrangements by which Z could participate in the hearing. However, in the event, it was not possible for the arrangements to be finalised prior to the start of the hearing.
Shortly after the hearing began, Z made contact with the Trust, wishing to participate in the hearing. I put the hearing on hold whilst the parties considered how best to involve Z. Dr A facilitated Z's participation in the hearing by calling her on his mobile phone and placing that phone so that Z could hear what was being said during the Skype hearing.
Z told me that she was willing to have a long-lasting contraceptive injection but did not want to have an intrauterine contraceptive device fitted. She told me that she would be helped by her nurse to go to the regular appointments which would be necessary to maintain her injectable contraceptive. She was unable to articulate why a long-lasting contraceptive injection was her preferred method of contraception other than by saying “ it's my body”. After hearing submissions and before giving my judgment, I told Z that I had decided it was in her best interests for her to have an intrauterine contraceptive device fitted at the time of her caesarean. Z rang off after hearing me say this.
Capacity to Litigate
The Trust and the Official Solicitor accepted, on the basis of Dr Camden-Smith's report, that Z did not have the capacity to conduct these proceedings. The Trust's evidence had not specifically addressed the issue of whether Z had the capacity to litigate so the Official Solicitor instructed Dr Camden-Smith to report on this issue.
Dr Camden-Smith reviewed Z's psychiatric history, noting that Z was reported in 2015 to have an IQ of 61 which placed her in the mild Learning Disability range. In 2017 Z's diagnosis of mild learning disability was confirmed by the Community Learning Disability team after Z had participated in an assessment using the Wechsler Adult Intelligence Scale (WAIS-IV). Z achieved particularly low scores on the Verbal Comprehension index, the Working Memory index, and the Processing Speed index which indicated that she had substantial comprehension and language difficulties. Additionally, Z's records contained various reports that Z's relatively good social and adaptive functioning, combined with her apparent verbal fluency, had resulted in her abilities being substantially over-estimated. Thus, Z had not always received the care and support she needed since it was evident that her receptive language skills and understanding were significantly below that of her expressed verbal skills. Z's local Learning Disability team had accepted that she has a learning disability with associated mental health needs which cannot be met by mental health services.
Dr Camden-Smith interviewed Z by telephone on 24 March 2020 and Z was polite and co-operative although at times annoyed with the questions she was asked. She did not understand why the court might be involved with respect to her decision about contraception; why Drs A and B might be worried about her understanding of that issue; or why Drs A and B had spent significant amounts of time exploring her decision in respect of contraception with her. Furthermore Z did not understand that she had a solicitor to advocate on her behalf and, though Dr Camden-Smith tried to draw parallels with Z's experience of Family Court proceedings, Z did not understand the role of a solicitor despite having had one previously in Family Court proceedings. Dr Camden-Smith concluded that Z lacked the capacity to conduct these proceedings due to an inability to understand the relevant information. She did not understand the court process or the kinds of decisions she might be called upon to make in court. Put simply, Z did not understand that her learning disability might affect her ability to make decisions.
I accepted Dr Camden-Smith's evidence. Her conclusions were on all fours with Z's past psychiatric history and it was plain to me from my very brief contact with Z that she did not understand the court process.
The key issue in this case was whether Z had the capacity to make a decision about contraception and, in particular, whether or not she should...
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