The Mental Health Trust and Others v DD (by her litigation friend, the Official Solicitor) BC
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Cobb |
| Judgment Date | 04 July 2014 |
| Neutral Citation | [2014] EWCOP 11 |
| Docket Number | Case No: 12505653 |
| Court | Court of Protection |
| Date | 04 July 2014 |
[2014] EWCOP 11
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cobb
Case No: 12505653
John McKendrick (instructed by Bevan Brittan LLP) for the Applicants
Michael Horne (instructed by Solicitor agents, on behalf of the Official Solicitor) for the First Respondent, DD
The Second Respondent, BC, was neither present nor represented
Hearing dates: 1 & 2 July 2014
This judgment was delivered in public. 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 incapacitated person 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.
Table of contents
| 1 Introduction | 1–7 |
| 2 The hearing | |
| ? Public hearing | 8–9 |
| ? Issues for determination | 10–11 |
| ? The Applicants | 12–13 |
| ? DD | 14 |
| ? BC | 15–17 |
| ? Oral and written evidence | 18 |
| 3 Summary of decision | 19 |
| 4 Relevant background | |
| ? Early life history | 20 |
| ? Child 1 | 21–22 |
| ? Child 2 | 23 |
| ? Child 3 | 24–25 |
| ? Child 4 | 26–28 |
| ? Child 5 | 29–30 |
| ? Summary of acute complications of pregnancy/child-birth | 31 |
| 5 Current pregnancy & ante-natal care | 32–38 |
| 6 19 June 2014 ante-natal appointment and ultra-sound scan | 39–44 |
| 7 DD: Mental state and Functioning | 45–54 |
| Capacity | |
| 8 General legal principles and their application to these facts | 55–63 |
| 9 Capacity to litigate: the evidence | 64–68 |
| 10 Capacity to decide on mode and timing of delivery of baby: the evidence | 69–79 |
| 11 Capacity to decide on assessment to test capacity to make decision on contraception | 80–84 |
| 12 Capacity: Conclusions | 85–89 |
| Best interests | |
| 13 Approach in law | 90 |
| 14 Mode of delivery of the baby: The Applicants' Plan | 91–96 |
| 15 Consideration of competing proposals | 97–100 |
| ? VBAC (Vaginal Birth After Caesarean) in hospital – spontaneous | 101–106 |
| ? VBAC in hospital — induced | 107–108 |
| ? VBAC at home | 109–115 |
| ? Planned Caesarean | 116–120 |
| 16 DD's ascertainable views on mode of delivery | 121–127 |
| 17 BC's ascertainable views on mode of delivery | 128 |
| 18 Achieving the admission to hospital: use of reasonable force & deprivation of liberty | 129–134 |
| 19 Conclusion on best interests on method and timing of delivery | 135–137 |
| 20 Date of intervention. Should DD (and BC) know? | 138–144 |
| 21 Should DD undergo the assessment to establish whether she can decide on issues of contraception? | 145–160 |
| 22 The unborn baby | 161–164 |
Introduction
DD is 36 years old. She is at an advanced stage of pregnancy. She has had an extraordinary and complex obstetric history and is now expecting her sixth baby. She has a mild to borderline learning disability, and an autistic spectrum disorder.
By application dated 23 May 2014, the Applicants seek declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby.
Specifically, and significantly, they seek a declaration as to the lawfulness in arranging for DD's baby to be delivered by planned caesarean section.
The Applicants seek a further order authorising the conduct of an assessment of DD's capacity to make decisions about contraception, following the imminent birth. DD's five older children are all cared for by permanent substitute carers; four of the children have been adopted.
The rulings sought in this case challenge the most precious and valued human rights and freedoms. Authorisation for the deprivation of DD's liberty and for the use of restraint (even for a short time) is sought, as is permission to intrude, by force if necessary, into the privacy and sanctity of her home. Steps to promote her physical health and well-being, it is argued, require a physically invasive medical procedure, to be conducted under general anaesthetic. I am acutely aware of the unusually onerous responsibility which falls upon me sitting as a Judge of the Court of Protection in determining this application.
As will be apparent from the judgment below, I have reached the conclusion that it would be right to authorise and render lawful the course proposed by the Applicants in relation to the planned caesarean; I do so in DD's best interests, even though I am conscious that this course will inevitably have profoundly distressing consequences for DD, a woman who I find lacks capacity to make these decisions for herself.
The need for a decision and reasoned judgment is urgent. The proposed assessment of DD's capacity to make decisions about future contraception is scheduled to take place in the next few days; the planned caesarean shortly thereafter. I have had the opportunity to reflect on the evidence and submissions which concluded on 2 July, before giving this judgment today, 4 July.
The hearing
Public hearing: This hearing has taken place in public pursuant to the provisions of rule 92(1)(a) of the Court of Protection Rules 2007. As this case gives rise to issues involving serious medical treatment, consideration has also, of course, been given to §16 of PD9E to the Court of Protection Rules 2007.
A widely drawn Reporting Restriction Order pursuant to rule 92(2) Court of Protection Rules 2007 was made on 4 June 2014 by Mostyn J; it has been modestly expanded at the last hearing on 18 June 2014 (before Pauffley J).
Issues for determination: This hearing was set up by the Order of Mostyn J (4 June 2014) specifically for me to consider applications for declarations that:
i) DD lacks capacity to litigate in respect of the issues below;
ii) DD lacks capacity to make decisions in respect of whether to undergo a caesarean section and to make decisions generally about her care and treatment in connection with her impending labour, including the place and mode of delivery of her unborn child;
iii) It is in DD's best interest to undergo a planned caesarean section in hospital with all necessary ancillary treatment;
iv) DD lacks capacity to consent to be subject of an assessment of her capacity to make decisions in relation to contraception (by way of sections 48 or 15 Mental Capacity Act 2005);
v) It is in DD's best interest to be subject of a one day assessment of her capacity to make decisions about contraception;
vi) The Applicants may take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry, restraint and sedation.
A further hearing is scheduled to take place imminently, for me to determine the issue of whether DD has the capacity to make decisions about contraception, and if not, to adjudicate upon future contraception in her best interests.
The Applicants: The First Applicant is the relevant healthcare body which provides, and will continue to provide, DD with mental health services; the Second Applicant will, it is proposed, provide the proposed medical obstetric treatment for DD, and the Third Applicant is the relevant local authority charged with safeguarding responsibilities for DD (and the unborn child).
It is evident from all that I have read and heard that these three public bodies have worked closely and collaboratively in seeking to resolve the exquisitely difficult issues in this case. I was impressed by the considerable effort, and conspicuous care, which they have brought in formulating and presenting this application. There is ample evidence (which I refer to below §32–34, §37) that since February 2014 they have sought to engage DD in their discussions and plans, though at almost every turn they have been frustrated. I am equally satisfied that they have anxiously considered all of the possible options, furnishing the court with careful 'balance sheet' analysis of the risks and benefits of the competing options on all issues. They plainly feel driven to recommend a course to me which they recognise will cause considerable distress to DD.
DD: DD was not present at this hearing but was represented by the Official Solicitor as her litigation friend. By the conclusion of the hearing, and having tested thoroughly the evidence, the Official Solicitor accepted, on DD's behalf, that:
i) DD lacks capacity to litigate this application insofar as it relates to the delivery of her baby;
and that, significantly,
ii) DD lacks the capacity to make a decision about mode of delivery of her unborn baby.
The Official Solicitor felt unable to make any recommendation on DD's behalf about the best interests of DD in relation to the mode of delivery of the unborn baby. The Official Solicitor opposed the proposed assessment of DD's capacity to make a decision about future contraception.
BC: BC was neither present nor represented. BC has significant learning difficulties, and is said to have a lower IQ than DD. Although he and DD have been in a reasonably long-term relationship, it is said to be characterised by frequent arguments and shouting; BC's behaviours around medical treatment for DD have not always been constructive.
I was satisfied from what I have heard and read that BC had notice of this hearing. He has not attended previous hearings before Mostyn J or Pauffley J. The Official Solicitor was at one time asked to consider representing him but declined, indicating that there was no proper information available to reach a view about litigation capacity.
I regarded it as of...
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