NHS Trust & Ors v FG (Rev 1)

Mr Justice Keehan:

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):

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):

I am extremely grateful to all three consultants for preparing detailed reports at such very short notice. I heard oral evidence by telephone from Miss HA and Dr BZ.

On 22 May 2014 I received, before the court sat, an email from Mr Dodd, legal editor of the Press Association informing me that the Press Association had only been given notice of the Trusts' application for a RRO after 7pm on 21 May 2014. He did not seek an adjournment nor did he seek to make any submissions on the application. No other representatives of the media attended the hearing or made any written representations.

I entirely appreciate the Trusts were working to very tight deadlines set by the court. Nevertheless it is imperative where applications are made for such draconian orders as a RRO that the media are given the earliest possible notice of the application. In only the most extreme of circumstances should notice be given after the close of business on the day before the hearing of the application.

Law - RRO

On the facts of this case Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged.

Freedom of expression

Section 12 (4) of the Human Rights Act 1998 provides that:

The seminal case on the approach to be adopted when a court is invited to make a RRO is the decision of the House of Lords in Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593 . It was held that an intense focus on the comparative importance of competing rights under Articles 8 and 10 was required. Neither Article has presumptive weight over the other and the proportionality test must be applied to each.

The issue of identifying individuals involved in court proceedings and the importance of the use of a name was addressed by Lord Rodger of Earlsferry in the Supreme Court case in Re Guardian News and Media Ltd and Othrs [2010] 2 AC 687 at paragraphs 63 and 64:

Thus a RRO, even a limited and focused RRO, is a draconian order which is not to be made routinely or even because it might help children. The application must pass the high hurdle for the granting of an order and must be shown by the applicant to be necessary.

A RRO should have the aim of protecting the patient rather than to confer anonymity on other individuals or organisations. It may do so, however, where the identification of doctors or hospitals, by way of example, is likely to prejudice their ability to care for the patient or lead to the identification and defeat the purpose of the order: COP Rules and 92 and PD13A paragraph 27.

The court must undertake a balancing of rights under article 8 and article 10: COP rules PD 13A paragraphs 24 and 25.

In relation to serious medical treatment applications, such as this one, the rules provide that:

Save for determining an issue concerning the disclosure of FG's medical records to X County Council, the Trusts' applications were heard in open court. I was invited to make a RRO, in the terms of a draft order provided to me, at the outset of the hearing. I granted the order sought and reserved judgment.

Law – Best Interests

Section 1 of the Mental Capacity Act 2005 ('MCA') sets out the basic principles which apply for the purposes of the Act:

Sections 2 and 3 of the MCA set out the definition of a person who lacks capacity to make a decision and the test for determining whether a person is unable to make a particular decision.

Section 4 of the MCA sets out the factors that must be considered when determining whether a decision made on behalf of a person lacking the capacity to make that decision himself, is in that person's best interests, of particular relevance are the provisions of s4 (1)-(4) and (6), namely:

The court has the power to make decisions on behalf of the patient subject to the provisions of s1 and s4 of the Act: s16 MCA 2005. Those decisions include making decisions in relation to medical treatment of the patient: s17 MCA 2005.

Evidence

Miss HA confirmed the information and opinions set out in her two reports and produced two obstetric care plans 'A' and 'B'. The former provided the plan in the event FG went into spontaneous labour before 9 June 2014 and the latter dealt with the situation where labour was induced on or around 9 June 2014.

The plans set out the close co-operation there would be between the obstetric clinical team and the psychiatric team caring for FG. It was agreed that on going into labour she would have to be transferred from Hospital 1, a psychiatric unit, to the Hospital 2. Provision was made for the care of FG during the transport by ambulance to the delivery unit at Hospital 2 and the care she would be given on arrival. She would be accompanied by two mental health staff in the ambulance who would be authorised by Dr BZ to keep her in their custody during her absence from Hospital 1 under s17 Mental Health Act 1983. Whilst in the delivery suite, she would be attended by two midwives and, if required, by a consultant obstetrician, preferably Miss HA.

If FG became uncooperative during labour, provision was made for her to be restrained as a measure of last resort and any decision to perform a caesarean section ('CS') would be made by two consultant obstetricians at Hospital 2. In the first instance the plan was to respect her expressed wish to have a natural vaginal delivery.

Miss HA examined FG at Hospital 1 on 12 April. She formed the view that FG had the capacity to make decisions about the delivery of her unborn child; she preferred to have a natural birth rather than undergo an elective CS.

Unfortunately thereafter FG refused to take her prescribed medication, her mental health deteriorated and she would not co-operate with staff at Hospital 1 who attempted to provide her with antenatal care. She refused to attend an ultrasound scan on 1 May and refused to report foetal movements to staff.

Miss HA next examined FG on 12 May. On this occasion HA was clear that FG did not have the capacity to make decisions about her welfare or her medical treatment. She was surprised by the extent of the change in FG which she described as 'marked'.

Miss HA told me of FG's increasing lack of co-operation with the midwifery team. It was evident that her paranoid thoughts, previously limited to social services and the psychiatric team were now attached to the midwifery and obstetric teams.

The plan was to cannulate FG early so as to be able to control her obstetric and psychiatric treatment needs. This would avoid the difficulties inherent in attempting to cannulate in an emergency if sedation was required.

I was told a CS would be avoided unless the procedure was obstetrically indicated. The team could resort to a CS at any time if the situation got out of control.

It was not known how FG would react and behave in the throes of labour. However, the deterioration in her mental health and her lack of co-operation did not augur well.

Dr BZ told me that FG believed that the psychiatric team, social services and, to some extent, the obstetric team were part of a conspiracy to murder her. She expressed the view that Dr BZ's interview with her on 21 May was part of the plot to murder her. She did not trust the mental health professionals and did not believe or accept the advice they gave her.

He confirmed the diagnosis of schizoaffective disorder of which her paranoid delusions are a part. Dr BZ was of the view that FG's refusal to engage adequately in her antenatal care was consistent with her stated delusional belief that the health service were seeking to "murder" her.

Dr BZ concluded that FG lacked the capacity to make decisions relating to her medical care and delivery. He confirmed Dr BU's assessment that FG lacked the capacity to litigate.

He believed FG could be persuaded to cooperate by obstetric and midwifery professionals but said there was a significant possibility she would not do so. In that event emergency intervention may be required and Dr BZ observed that:

Dr BZ was asked to address the impact of FG being informed of or becoming aware of these proceedings. He reported:

Analysis

I considered with care the evidence of Miss HA and Dr BZ. They both gave their evidence – written and oral - in a measured fashion. Both readily recognised that first consideration must always be given to adopting the least interventionist approach.

I was satisfied that Miss HA and Dr BZ have the welfare best interests of FG and her unborn baby at the forefront of their evaluation of the issues in this case. I accepted their evidence and their professional opinions.

FG suffered from a schizoaffective disorder with paranoid delusions. She had refused to take her prescribed medication and as a result her mental health has significantly and progressively deteriorated. Sadly, she believed the clinical professionals caring for her were part of a conspiracy to kill her.

In those circumstances I was satisfied that FG lacked the capacity

Further I was satisfied on the evidence before me that:

In the premises I was wholly satisfied that the orders sought by the Trusts in respect of her medical treatment were in FG's best interests. These are, of course, permissive orders. I was in no doubt that the medical professionals would only adopt the measures permitted by the order sought in extreme circumstances and as a last resort.

An order permitting the trusts not to notify FG of these proceedings is extremely unusual. It is at the extremity of what is permissible under the European Convention. It is a very exceptional step which will only be justified and required if the interests of the patient and/or the child demand the same: see Re D (Unborn Baby) [2009] 2 FLR 313 .

I accepted the considered evidence of Dr BZ about the likely adverse impact and consequences of FG being informed or becoming aware of these proceedings. I was doubtful it would be appropriate or proportionate for her never to be told of these proceedings. A cautious step by step approach was required.

In the circumstances I was satisfied that the order was necessary and a proportionate response to the risks identified to FG and her child. What the position would be after she had given birth would have to be considered at a future hearing.

In light of my findings and conclusions set out above, it was obvious that any reporting by the media of these proceedings and of this judgment was likely to come to FG's knowledge with the serious adverse consequences I have set out above. Absent a future determination that FG should never be informed of these proceedings, there will come a time when these proceedings should be reported and a RRO is no longer necessary.

I have carefully balanced the article 8 rights of FG and the article 10 rights of the media. I was in no doubt that in the extremely unusual circumstances of this case a time limited and focused RRO was essential to protect the physical, emotional and mental health of FG and the physical and emotional well being of her unborn child.

In the premises I was satisfied I should make the orders sought by the Trusts, with the consent of the Official Solicitor, to:

Subsequent Events

The mother gave birth to a healthy baby boy on 1 June 2014. She was fully co-operative with the mental health and midwifery staff and, accordingly, no restraint or invasive medical treatment was required. As she had wished, the mother gave birth to her baby son by a normal vaginal delivery.

The local authority instituted public law proceedings in respect of the child.

On 6 June at the request of the Official Solicitor I made a direction for Dr BZ to prepare a further report on the current state of FG's mental health and the consequences, if any, if she were to be told of these proceedings.

I received a report from Dr BZ dated 20 June and an email of 23 June. He advised that (anonymised for the purposes of this judgment:

On the basis of Dr BZ's evidence and the lack of any adverse reaction from FG on learning of the care proceedings and birth plan, I was satisfied it was manifestly right and in FG's best interests that she should be told about these proceedings.

Accordingly I discharged the relevant paragraph of the order of 22 May and made a declaration that she should be informed of this matter.

In relation to the RRO I accept Dr BZ's evidence that, at least, for the time FG remains as an in patient at Hospital 1, or other psychiatric facility or residential assessment unit, it would not be in her interests for her or her child to be identified in the media. Further it would not be in her interests for the hospital, the responsible NHS Trust or the County in which she resides to be published. There was and is, I accept, a very real risk that if the latter were made public it is highly likely FG and/or her baby would be identifiable given the most unusual circumstances of this case.

Dr BZ is of the view that FG's fellow patients at Hospital 1 are eager for news from the world outside of the hospital. One or more of them would be very likely to learn of any publicity about FG. They would discuss it between themselves. If FG learnt of the same, and given her paranoid delusions, it would inevitably lead to a further deterioration of her mental health.

Accordingly I was invited by the trust and the Official Solicitor to continue the current RRO.

In undertaking the balancing exercise between FG's article 8 rights and the article 10 rights of the media, I was satisfied the balance falls decisively in favour of FG's article 8 rights.

Accordingly I continued the RRO in the same terms as before. However given the nature of the order a step by step approach was necessary rather than making a blanket RRO without limit of time. Thus I directed:

i) the RRO will be discharged on 31.12.14 as a back stop provision;

ii) if FG is discharged from Hospital 1 or other psychiatric facility or residential assessment unit before that date, the Trusts or the Official Solicitor must restore the matter to court for consideration of whether

iii) the media have liberty to apply to vary or discharge this part of my order upon giving 48 hours notice in writing to the parties.

Guidance

I have been invited by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment.

There is concern that in a number of recent cases there has not been a full appreciation or understanding of:

I have helpfully been provided with written submissions on the guidance I should give by the Official Solicitor and the local authority in the case of North Somerset Council v LW and othrs [2014] EWHC 1670 (Fam) .

Counsel for the Trusts advised me that NHS England and the Department of Health should be notified of the invitation to give guidance so that both had the opportunity to make submissions. In the event neither NHS England nor the Department of Health nor the Trusts in this case nor the local authority in the associated public law proceedings chose to make any written submissions.

The Trusts did, however, seek clarification from the Official Solicitor as to whether he submitted that the case of FG fell into one or more of the four categories of cases suggested by him in his submissions as to when an application should be made to the Court of Protection. The Official Solicitor responded in a Further Submissions document sent to the court and the Trusts on 7 July.

The Trusts take issue with those Further Submissions, in a letter sent to me dated 11 July, on two grounds:

i) permission of the court was not sought to file and serve the same; and

ii) within the Further Submissions criticisms are made by the Official Solicitor about the conduct of the Trusts in the case of FG which the latter asserts are now made for the first time some weeks after the substantive case was concluded.

I accept no formal application was made for permission to file and serve further submissions. I was, however, notified of the Official Solicitor's intention to do so by an email sent to my clerk on 3 July. I did not respond that the Official Solicitor could not do so because I assumed any further submissions would seek to clarify or refine the issues in this difficult area. In the main the Further Submissions do just that and I have had regard to them.

The Trusts are right, in my judgment to take issue with the Official Solicitor making criticisms of the Trusts' conduct in this case. I have not had regard to those paragraphs of the Further Submissions which deal with the same. My reasons are twofold:

i) when the issue of guidance was raised during the substantive hearing I observed that I sought submissions to give guidance for the future conduct of such cases and not because I intended to be critical of the conduct of the Trusts involved in this case; and

ii) whilst criticisms could be made of the trusts involved in a number of such cases which I have heard in recent months, I do not consider criticisms of individual trusts to be either helpful or necessary in formulating guidance for the future. I have limited myself to making the observations about the initial stance of the Trusts on the need for an application to be made to the Court of Protection and on the adequacy of the evidence initially filed and served [see paragraphs 13-18 above].

The Guidance is set out in the annex to this judgment.

For the purposes of the Guidance the term 'P' refers to a pregnant woman who lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and post natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness.

The Guidance should not be read as applying to every pregnant woman with a diagnosed mental health illness. No doubt in the vast majority of such cases it will not be necessary to make an application to the Court of Protection or to the Family Division of the High Court. I should emphasis that P is assumed to have capacity in accordance with the provisions of s1(2) MCA, unless it is established to the contrary, even if she is detained under the provisions of the Mental Health Act 1983 ('MHA').

Each case is fact specific and decisions must be made on the basis of the facts and circumstances of each individual. The Guidance is intended:

i) to prevent the need for urgent applications to be made to the out of hours judge; and

ii) to ensure trusts do not rely inappropriately on the provisions of s5 of the MCA.

Urgent applications to the out of hours judge must be limited to those rare and few cases where a genuine medical emergency has arisen and an immediate court order is necessary. I do not consider a failure to plan appropriately and/or a failure to identify a case where an application to the court may be required constitutes a genuine medical emergency.

Obstetric care may be provided under the MHA. There may be circumstances where delivery of P's baby may be undertaken earlier than term to enable effective treatment of P's severe mental illness. MHA s 63 provides:

Thus in appropriate circumstances s 63 MHA may authorise medical treatment when the primary purpose of the same is to alleviate or prevent a worsening in P's psychiatric illness or its symptoms. If obstetric treatment can be provided under s63, it can be performed without P's consent using proportionate and necessary restraint: Tameside and Glossop Acute Services NHS Trusts v CH [1996] 1 FLR 762 .

In the course of giving judgment in Tameside and Glossop Wall J, as he then was, observed:

In the vast majority of these cases obstetric care will be provided to P under the MCA with the powers under the MHA being used to facilitate P receiving that care at an acute hospital under the MCA. A patient detained under the MHA, may be granted conditional leave from the psychiatric hospital pursuant to s17 MHA. The section provides that:

Thus the responsible clinician could require P to remain in the custody of staff from the psychiatric hospital during transport to the acute hospital and whilst P is present at that hospital. There are limits to the conditions which the responsible clinician may impose. P could not lawfully be made the subject of a condition which required her to undergo obstetric or other treatment outside the scope of s 63 MHA. Nor could the responsible clinician lawfully impose a condition which required P to follow the instructions of the obstetric staff in relation to such treatment.

Care or treatment may be provided to P without the authorisation of the court under the provisions of s 5 MCA. This provides that:

A number of conditions must be met before clinicians could lawfully provide obstetric care or treatment under s 5 MCA, namely:

i) The clinicians must have taken reasonable steps to determine whether P lacks the capacity to decide whether or not to undergo the obstetric care in question (s 5 (1) (a));

ii) The clinicians must reasonably believe that P lacks the requisite capacity (s 5 (1) (b) (ii));

iii) The clinicians must reasonably believe at the time they provide the obstetric care in question that is in P's best interests to do so (s 5(1)(b(ii)).

The potential use of restraint complicates matters. Restraint as defined in s 6(4) MCA is not restricted to the threat or use of force; it includes restricting P's liberty of movement whether or not she resists the same. So long as it does not amount to a deprivation of P's liberty, restraint can be used under s 5 MCA provided that it is:

i) necessary to prevent harm to P (s 6(2)); and

ii) a proportionate response to the likelihood of P suffering harm and the seriousness of that harm (s 6 (3)).

The distinction between actions which amount to restraint only, and those which become a deprivation of liberty might be difficult, but is of critical legal significance because s.4A(1) prevents clinicians performing acts which amount to a deprivation of liberty as part of the care and treatment under s.5.

What may amount to a deprivation of liberty is a fact sensitive issue which must be determined in each individual case. The 'acid test' for the determination of a deprivation of liberty was propounded by Lady Hale in P v Cheshire West and othrs [2014] UKSC 19 at paragraph 49.

The 'acid test' identifies two elements of a deprivation of P's liberty:

i) she is subject to continuous supervision and control; and

ii) she is not free to leave.

It will commonly be the case that when at the acute hospital P:

i) will have obstetric and midwifery staff constantly present throughout her labour and delivery;

ii) will be under the continuous control of obstetric and midwifery staff who, because she lacks capacity to make decisions about her medical case, will take decisions on her behalf in her best interests;

iii) will often not be permitted to leave the delivery suite.

Those factors may, when applying the acid test, lead to a conclusion that P is or will suffer a deprivation of her liberty when at the acute hospital. If the Trusts are to deprive P of her liberty, they have a duty not to do so unlawfully: s6 HRA 1998.

The Trusts must, therefore, plan how P is to receive obstetric care in sufficient detail to identify whether there is potential for a deprivation of liberty to arise. When trusts identify there is a real risk that P will suffer an additional deprivation of her residual liberty during transfer to and from the acute hospital and/or when present at the acute hospital, the Trusts must take steps to ensure the deprivation of liberty is authorised in accordance with the law. I use the term 'real risk' to mean that "judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty": AM v South London v Maudsley NHS Foundation and Anthr [2013] UKUT 365 (AAC) per Charles J at para 59.

Where the Trusts identify there is a real risk that P will suffer a deprivation of liberty in these circumstances it is for them to decide whether the same is achieved by a standard authorisation under schedule A1 of the MCA, by an application to the court or under another lawful jurisdiction.

I do not propose to analyse further what measures or restraint used or proposed to be used to facilitate P's obstetric care would amount to a deprivation of liberty. I limit myself to four observations:

i) a mental health patient enjoys all of the fundamental rights and freedoms guaranteed under the ECHR save to the extent that her liberty is restricted pursuant to the MHA;

ii) restraint or measures to facilitate P's obstetric care which amount to a deprivation of liberty would interfere with her rights under Articles 3, 5 and 8 of the ECHR unless authorised in accordance with the law;

iii) total restraint for very short periods may amount to a deprivation of liberty; ZH v Commissioner of the Police for the Metropolis [2013] 1 WLR 3021 ; and

iv) P's lack of objection to obstetric care or any restraint used to facilitate it is irrelevant in determining whether the actions amount to a deprivation of liberty: P v Cheshire West and Othrs (above), para 50.

There are only three circumstances where a deprivation of liberty would be lawful without the court's authorisation:

i) if it has been authorised by a valid standard or urgent authorisation under Schedule A1 to the MCA (s 4A (5)).

ii) if it is necessary, and undertaken wholly or partly for giving P life-sustaining treatment or for preventing a serious deterioration in P's condition, but only for a limited period whilst a decision in respect of any relevant issue is sought from the Court (s 4B(2)-(5)).

iii) under the common law doctrine of necessity.

In relation to standard or urgent authorisations under Schedule A1 MCA, I make the following observations:

i) if P is 'ineligible' to be deprived of her liberty in accordance with Part 1 of Schedule A1, neither a standard or urgent authorisation will be available to the Trusts;

ii) if the need for the deprivation of liberty in relation to the proposed obstetric care was foreseeable but the Trusts omit to seek a standard authorisation, the use of an urgent authorisation may be unlawful: see paragraphs 6.2 and 6.3 of Deprivation of Liberty Safeguards Code of Practice which provides that urgent authorisations should normally only be used in response to sudden unforeseen events and they should not be used where there is no expectation that a standard authorisation will be required; and

iii) the mere fact that a deprivation of liberty could be authorised under Schedule A1 does not absolve the Trusts from making an application to the court where the facts of the individual case would otherwise merit the same.

The Official Solicitor submits that Acute and Mental Health Trusts cannot lawfully provide obstetric care to P in all circumstances without the involvement of the court. He recognises that the vast majority of deliveries of mentally ill women are and will be dealt with either by the acute and mental health trusts relying upon their statutory powers and/or the common law as justification for any intervention, restraint or deprivation of liberty. This, he submits, is not surprising because the MCA provides a flexible framework within which trusts can lawfully manage patients who lack capacity in relation to their obstetric care.

There are, however, a number of circumstances in which the Official Solicitor submits that an application should be made by the Trusts treating P to obtain permissive orders relating to P's obstetric care. They are as follows:

I agree.

Further in relation to category 1, it is recommended that the following categories of case should be the subject of an application to the court, namely :

i) delivery by caesarean section is proposed in circumstances where the merits of that proposal are finely balanced; or

ii) delivery by caesarean section is proposed and is likely to involve more than transient forcible restraint of P.

There are clear and cogent reasons for identifying those few categories of cases where Trusts should make an application to the court. I do not propose in this judgment to give an exegesis on the interplay between the MCA 2005 and the MHA 1983 (see the provisions of ss63 and 145(4)) nor on the Deprivation of Liberty regime. I propose solely to set out the reasons why these four categories of cases should be the subject of an application.

Category 1

Delivery of a baby per se does not amount to serious medical treatment. The medical interventions proposed by the Trusts may, however, amount to serious medical treatment.

The provisions of Court of Protection Practice Direction 9E identify features of cases which will involve serious medical treatment ('SMT') (para 3) and those which may involve SMT (para 6). The definition of SMT in COP D9E is non exhaustive and fact specific.

Although a caesarean section is a major surgical procedure it reduces the risk of a number of adverse events to the mother but brings with it some increased risks of complications.

Accordingly an uncomplicated planned caesarean section will not of itself amount to SMT.

A proposed caesarean section may, however, become a case of SMT where:

Whether the proposed intervention amounts to SMT is a decision to be made in each case following consideration of the provisions of PD9E, an assessment of the risks involved and the potential consequences for the individual patient.

A decision to compel a mother, who would otherwise wish to have as natural a birth as possible, to undergo treatment which amounts to SMT is a very serious interference with her human rights as protected by the ECHR. In my judgment such decisions in the case of a P should be brought before the court for permission to undertake the same. Accordingly in this category of case an application should be made to the court irrespective of whether the treatment proposed could be provided pursuant to the provisions of s5 MCA or as medical treatment under s63 MHA.

Category 2

Often the Trusts will hope to be able to achieve a successful delivery without the need for any restraint of P but plan to use the same should P not co-operate or become non-compliant with the care being afforded to her. The restraint may involve P being held down on her bed, using handcuffs or the administration of chemical sedation.

Where it is not possible to predict whether active restraint will be required, the case will not fall within paragraph 6 (c) of PD9E: to come within that provision it is necessary for there to be a greater degree of confidence that restraint will be required.

In the Trusts' letter of 11 July they urge me to be cautious before adopting the Official Solicitor's formulation of category 2 cases [see paragraph 82 below]. They assert that if:

I accept I should be cautious but I do not accept that the formulation of category 2, if properly applied, will lead to applications being made to the court in every such case.

The use of more than transient forcible restraint of a mother during labour is a grave interference with her rights under Articles 3,5 and 8 of the ECHR. In my judgment it is so grave that such categories of cases should be the subject of an application to the court.

The assessment of the extent of the potential interference requires a consideration of:

i) quantifying the risk of the interference being required at all; and

ii) assessing the extent and gravity of the potential interference if it were to be undertaken.

The assessment of a 'real risk' requires an intense focus on P's present and individual circumstances and on her previous behaviour in the context of the nature of her illness. Thus in cases where there is no evidence of P having been non compliant with her care or having been aggressive to medical staff or others, either in the past or currently, it is unlikely such a case would fall within this category.

I have included this category in the Guidance with the intention of alerting Trusts of the need to make these assessments prior to labour and in a timely fashion to allow for appropriate planning and, if necessary, to make an application to the court. It is not intended that applications to the court should become routine or the usual course taken in the majority of cases.

Category 3

Peter Jackson J observed in London Borough of Hillingdon v Neary [2011] 4 All ER 584 at para 33 a case concerned with the DOLs regime, that:

Where there is a serious dispute as to what obstetric care is in P's best interests between the treating clinicians themselves or, more likely, between the clinicians and P or her family, a determination of best interests by the court give the Trusts the unequivocal legal authority to carry out the procedures irrespective of the dispute. Further, such a course is likely to provide reassurance to the clinicians and, in due course, P, that the course adopted was the most appropriate.

For the avoidance of doubt, not every dispute over P's obstetric care will fall within category 3. There must be a serious dispute which must have real substance, for instance, based on P's religious beliefs.

Category 4

I refer to paragraphs 92 to 98 above where I make observations in relation to the use of restraint and the interventions and/or circumstances which may amount to a deprivation of liberty.

Whether the proposed obstetric care and/or the proposed measures used to facilitate it would amount to a deprivation of liberty is a fact sensitive issue which will have to be considered on a case by case basis applying the 'acid test' propounded by Lady Hale in P v Cheshire West & othrs [2014] UKSC 19 at para 49.

A deprivation of P's liberty which is not authorised in accordance with the law will amount to a breach of her rights under Article 5 of the ECHR. As public authorities, Acute and Mental Health Trusts have a duty under s.6 of the Human Rights Act 1998 not to act in a way that is incompatible with P's Convention rights. When planning P's care in cases of this nature, Trusts therefore have a duty to consider whether the interventions they propose or the steps necessary to facilitate them will, or could, amount to a deprivation of P's liberty and, if so, how that should be authorised.

Logically, it must follow that if Trusts consider that P's liberty may be deprived to facilitate her obstetric care, but the Trust is unable to deprive her of her liberty under Schedule A1, and no other legal justification for that deprivation of liberty is available, they have a duty to seek the authorisation of P's deprivation of liberty from the Court.

Although the Court will not be able to make a welfare order depriving P of her liberty under s 16(2)(a) of the MCA, it will be able to exercise the inherent jurisdiction of the High Court to make such an order provided that it complies with Article 5: see A NHS Trust v A [2014] 2 WLR 607 , per Baker J, para 89-96.

The Guidance is not intended to restrict the cases where Trusts make an application to the Court to only those cases which fall within categories 1 – 4. It identifies those categories of cases which should be the subject of an application. It must always remain open to Trusts to make an application to the Court in cases of this nature if the individual circumstances of the case justify it.

I hope that early and thorough planning in cases of this nature will result in the proper identification of cases which require an application to the Court and, on the contrary, those which can properly and appropriately be managed under the provisions of MCA 2005 and/or MHA 1983 without judicial involvement.

Guidance

Introduction:

In this guidance the following terminology will be used:

‘P’ the pregnant woman who lacks, or may lack, the capacity to take decisions in relation to her antenatal, perinatal and postnatal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from her psychiatric illness;

‘obstetric care’ all care and treatment needs brought about by P’s pregnancy including antenatal care, management of labour and delivery, and postnatal care;

‘Mental Health Trust’ the NHS Trust responsible for P’s psychiatric care, whether in the community or in a psychiatric hospital;

‘psychiatric hospital’ any mental health unit at which P resides, whether detained pursuant to statutory powers or as a voluntary patient;

‘acute hospital’ a hospital other than the psychiatric hospital at which it is intended that P will receive obstetric care and deliver her child;

‘Acute Trust’ the NHS Trust responsible for the acute hospital;

‘Court’ either the Court of Protection or the Family Division of the High Court.

This Guidance applies in cases where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care (see paragraph 1 above) resulting from a diagnosed psychiatric illness, falls within one of the four categories of cases set out in paragraph 3 below.

An Acute Trust and/or Mental Health trust should make an application to seek orders in relation to P’s obstetric care to the Court of Protection or to the Family Division of the High Court if the case falls within any of the following four categories, namely where:

Category 1 - the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of COP Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the MCA or MHA; or

Category 2 - there is a real risk that P will be subject to more than transient forcible restraint; or

Category 3 - there is a serious dispute as to what obstetric care is in P’s best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under s.4(7) of the MCA; or

Category 4 – there is a real risk that P will suffer a deprivation of her liberty which, absent a Court order which has the effect of authorising it, would otherwise be unlawful (i.e. not authorised under s4B of or Schedule A1 to the MCA).

In relation to category 1, it is recommended that the following categories of case should be the subject of an application to the court, namely :

delivery by caesarean section is proposed in circumstances where the merits of that proposal are finely balanced; or

delivery by caesarean section is proposed and is likely to involve more than transient forcible restraint of P.

It may be appropriate to make an application to the court in cases which do not fall within the categories set out in paragraph 3 above; it will depend on the facts of the case. If an application is so made, the provisions of this Guidance should be followed.

Assessment:

The early identification of an individual in respect of whom an application might have to be made is essential. In the case where P is detained under the provisions of the Mental Health Act 1983, the lead professional is likely to be a treating psychiatrist at the hospital where P is detained. In the case where P is living in the community the lead professional is likely to be a member of P’s midwifery team.

Once P has been so identified, the Acute and Mental Health Trusts should liaise to assess P’s capacity to make decisions in respect of her obstetric care and to plan how and when such care is to be delivered in her best interests.

An assessment of P’s capacity to litigate should be undertaken; this will usually be performed by P’s treating psychiatrist.

Capacity may, of course, fluctuate and it is extremely important to keep the issue of capacity under regular review.

Where there are concerns about P’s ability to care for her unborn child the Acute and/or Mental Health Trusts should notify the relevant social services department of P’s case if social workers are not already involved with her. The local authority should commence child protection procedures immediately upon receipt of a referral. Thereafter, there should be regular liaison and co-operation between the Acute Trust, the Mental Health Trust and the local authority.

The Acute and Mental Health Trusts, together with the relevant local authority, should hold regular planning and review meetings (‘professionals meetings’). Those meetings should be minuted. Multi-agency co-operation is likely to be an essential feature of the planning process to achieve the best outcome for P and her unborn child.

An identified clinician from the Acute Trust or the Mental Health Trust should be appointed to chair the planning and review meetings.

Part of the planning process should involve identifying whether and, if so, when a decision by the Court will be required to authorise obstetric care or any deprivation of liberty to facilitate its provision.

The planning process should include consideration of an assessment of the risk of harm, if any, which P poses to herself, to her unborn child or to others. Where any professional considers such a risk exists that assessment must be recorded in writing and presented at the next professionals meeting.

If as a result of the risk assessment the local authority proposes to make an application under the inherent jurisdiction for permission to withhold the care plan for the unborn child from P, the application should be made, save in the case of a genuine emergency, no later than 4 weeks before the expected date of delivery. (The threshold for the granting of such an application is high and applications will not be granted routinely).

If an application is made by either the Trusts or by the local authority for permission not to notify P of the application(s) and it is thought appropriate to apply for a Reporting Restrictions Order, the applicant(s) must give full and proper notice to the print and broadcast media of the same.

A decision by one agency to withhold information from any other agency must be recorded identifying the cogent reasons for the decision. The agency, from whom information is to be withheld, must be notified of the same at the earliest opportunity.

Application:

Where it is decided that P’s case falls within one of the four categories set out in paragraph 3 above or it is otherwise decided to make an application, an application should be made to the court at the earliest opportunity.

Save in a case of genuine medical emergency, any application should be made no later than 4 weeks before the expected date of delivery. This time frame is required for the following reasons:

where P is assessed as lacking capacity to litigate, it will enable the Official Solicitor to undertake any necessary investigations;

to ensure the final hearing is listed and heard at least a few days before the proposed interventions; and

to enable a directions hearing to be held around 2 weeks before the final hearing. The court and the parties will then have the opportunity to ensure the court has all the relevant and necessary evidence at the final hearing.

In compliance with the timetable set out above, the Trusts should in a timely manner, take the following steps:

issue the application

notify the Official Solicitor of the application;

disclose any evidence to the Official Solicitor which they consider appropriate;

seek an urgent directions hearing, preferably around two weeks before the final hearing, at which disclosure and the scope of the evidence can be determined;

liaise with the Clerk of the Rules to list the substantive hearing at an early stage.

It is important that the Trusts should seek early advice and input from their legal advisers.

Late applications are to be avoided save in a case of genuine medical emergency. They have four very undesirable consequences:

the application is more likely to be dealt with by the out of hours judge and without a full hearing in public;

the available written evidence is more likely to be incomplete and necessitate substantial oral evidence;

it seriously undermines the role that the Official Solicitor can and should properly play in the proceedings; and

it deprives the court of the opportunity to direct that further evidence, including independent expert evidence, if necessary, is obtained in relation to the issue of capacity or best interests.

This approach is dictated by P’s Article 5, 6 and 8 rights and best interests.

The following evidence should be filed and served in every application:

(a) In the event that P is to be transferred from a psychiatric hospital to an acute hospital for her obstetric care, a care plan from the Mental Health Trust for that transfer, to include

(i) when and, if not at a defined time, the circumstances in which P is to be transferred;

(ii) the form of transport (ambulance, secure taxi etc.);

(iii) which members of staff are to accompany P;

(iv) an assessment of the prospects of P not co-operating with the transfer;

(v) whether any specialist advice has been obtained in relation to the restraint of pregnant women and, if it has, the nature of that advice;

(vi) the plans for any restraint that may be used to facilitate the transfer, including who is to undertake the restraint, at whose direction, and with a description of the techniques to be used;

(vii) a clear description of what P’s status will be under the MHA during transfer and whilst at the acute hospital.

(b) A care plan from the Acute Trust for P’s obstetric care, including:

(i) the obstetric interventions and care that are proposed;

(ii) what anaesthesia is planned, or may be required;

(iii) when, where and by whom the interventions, care and anaesthesia are to be delivered;

(iv) what further interventions may become necessary and in what circumstances.

(c) A care plan from the Acute Trust relating to the issue of restraint at the acute hospital, including:

(i) an assessment of the prospects of P not complying with the obstetric interventions and care that is proposed;

(ii) in a stepwise and escalating fashion, a description of the measures and techniques to be used;

(iii) who is to undertake the physical or chemical restraint;

(iv) whether any specialist advice in relation to the restraint of pregnant women has been obtained and, if so, the nature of that advice.

(d) A witness statement from P’s responsible clinician (or to the extent that he/she cannot deal with the issues, from others) which:

(i) contains an overview of P’s psychiatric history;

(ii) details the liaison between the psychiatric and obstetric teams caring for P;

(iii) includes a focused assessment of P’s capacity to consent to the obstetric treatment which is proposed;

(iv) sets out the duration for which P’s lack of capacity is likely to persist despite any steps that can reasonably be taken to help her regain capacity;

(v) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;

(vi) endorses the plan for transfer and any restraint during it;

(vii) compares the impact upon her mental health of the proposed obstetric treatment and restraint and any alternatives;

(viii) assesses what obstetric treatment is in P’s best interests from a psychiatric perspective.

(e) A witness statement from a consultant obstetrician (or to the extent that he/she cannot deal with the issues, from others) which:

(i) contains an overview of P’s obstetric history so far as it is known;

(ii) reviews the obstetric care already provided in the present pregnancy;

(iii) details the liaison between the obstetric and psychiatric teams caring for P;

(iv) explains what obstetric treatment and interventions are proposed;

(v) identifies what alternative management strategies exist;

(vi) deals with the anaesthesia which may be used and its risks/benefits;

(vii) refers to the obstetric care plan;

(viii) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;

(ix) endorses the care plan for restraint at the acute hospital;

(x) compares the risks and benefits to P of the proposed obstetric treatment and interventions versus the alternatives and justification as to why the plan proposed is in P’s best interests;

(xi) explains why the proposed obstetric treatment and interventions are in P’s best interests.

(f) Witness evidence, which may be contained in the witness statements from the consultant psychiatrist and obstetrician, which:

(i) sets out, insofar as they are able, P’s past and present wishes and feelings and beliefs and values in relation to

(1) the pregnancy;

(2) obstetric care, including the proposed obstetric care and interventions;

(3) the importance of minimising the risk to her own health during pregnancy and delivery of her baby;

(4) the importance of maximising the prospects of safe delivery of the baby;

(ii) explains whether P knows of the application and, if not sets out the cogent reasons why P has not and should not be informed of the application;

(iii) identifies the individuals whose views should be taken into account in accordance with s.4(7) of the MCA and sets out the gist of their views as to

(1) whether the obstetric care that is proposed is in P’s best interests and, if not, what care they consider would be;

(2) P’s own past and present wishes and feelings and beliefs and values in relation to the matters in (i) above.

Any orders authorising medical intervention, restraint and/or a deprivation of liberty are, of course, permissive and not mandatory. P’s capacity to make decisions and/or the need to take any of the measures authorised by the court must be kept under close review by her treating clinicians and medical professions throughout P’s antenatal, perinatal and postnatal care.

Documents Checklist.