NHS Trust & Ors v FG (Rev 1) [2014] EWCOP 30

[2014] EWCOP 30Case No COP 12505561
COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/08/2014
Before
THE HONOURABLE MR JUSTICE KEEHAN
Between
(1) NHS TRUST 1Applicants(2) NHS TRUST 2ApplicantFGRespondent
Ms Catherine Dobson (instructed in-house by NHS Trust 1) for First Applicant and (instructed by Bevan Brittan LLP) for the Second ApplicantMr Michael Horne (instructed by the Official Solicitor) for RespondentHearing Hearing dates: 20 th May and 22 nd May
JudgmentTHE HONOURABLE MR JUSTICE KEEHANThis judgment was delivered in private. 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.

Introduction:

[1]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).[2]The First Applicant Trust provided obstetric care to the Respondent, FG. The Second Applicant Trust provides psychiatric care and services to her.[3]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.[4]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.[5]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.[6]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.[7]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

[8]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.[9]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.[10]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.[11]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.[12]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.[13]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.[14]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.[15]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.[16]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.[17]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 hera. 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 arising from the transfers or medical treatment referred in paragraph 2 above or the measures to facilitate such transfers or treatment referred to in paragraphs 3 and 4 above shall be lawful, pursuant to s.16(2)(a) of the Mental Capacity Act 2005, alternatively the inherent jurisdiction of the High Court PROVIDED AS ALWAYS THAT, IN RELATION TO PARAGRAPHS 2 TO 4 ABOVE:(i) any measures that may be used to facilitate such transfers or treatment and/or any deprivation of liberty shall be the minimum necessary; and(ii) all reasonable steps are taken to minimise distress to FG and to maximise her dignity.[18]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.[19]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.[20]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

[21]On the facts of this case Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged. Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 10 Freedom of expression 2. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 3. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.[22]Section 12 (4) of the Human Rights Act 1998 provides that: The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to(a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published, [and](b) any relevant privacy code.[23]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.[24]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 6897 at paragraphs 63 and 64:63. What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH&Co KG v Austria 31 EHRR 246, 256 paragraph 39 quoted at paragraph 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457,474 paragraph 59 “judges are not newspaper editors”. See also Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 1 AC 145 paragraph 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593,608, paragraph 34 when he stressed the importance of bearing in mind that:
“from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer”
. Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.[25]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.[26]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[27]The court must undertake a balancing of rights under article 8 and article 10: COP rules PD 13A paragraphs 24 and 25.[28]In relation to serious medical treatment applications, such as this one, the rules provide that: “the court will ordinarily make an order pursuant to rule 92 that any hearing shall be held in public, with restrictions to be imposed in relation to publication of information about the proceedings”: COP Rules PD 9E paragraph 16.[29]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

[30]Section 1 of the Mental Capacity Act 2005 (‘MCA’) sets out the basic principles which apply for the purposes of the Act: 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.(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.[31]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.[32]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: 4 Best interests(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a) the 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 what might be in his best interests.(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.(3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be.(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.[33]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

[34]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.[35]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.[36]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.[37]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.[38]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.[39]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’.[40]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.[41]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.[42]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.[43]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.[44]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.[45]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.[46]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.[47]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: “It is important for FG to have a healthy baby insofar as possible. Because of her persecutory beliefs, any damage to the baby is likely to be interpreted by FG as being the intentional result of a plan against her personally. This will only embed her persecutory beliefs more deeply and make them harder to treat. If FG does not co-operate and emergency intervention is required, this would be in FG’s best interests because any harm to the baby could also lead to FG becoming depressed or feeling inadequate, which are more likely given her fragile mental state. This would possibly have a greater impact on FG than on a woman without pre-existing mental health problems”.[48]Dr BZ was asked to address the impact of FG being informed of or becoming aware of these proceedings. He reported:
“If FG was aware of these proceedings she would not understand that they were in her interests, but would perceive them as a plot against her. She would believe that the state was colluding against her, possibly to harm her and her baby. This would impact negatively on an already fractured relationship she has with her mental health team and could have a dramatically negative effect on her relationship with her obstetric team making her compliance with her labour plan less likely and increasing the likelihood of surgical intervention. It would also make FG increasingly distressed for the final parts of her labour and increase the possibility of an impulsive act that could harm her or her baby. If FG was to find out about these proceedings after the delivery she would no doubt feel betrayed that she was not informed about them and it would feed into her persecutory beliefs that people have colluded against her. It would make her mental health and physical care more difficult. The longer term effect of knowing about these proceedings, whenever she became aware of them, is likely to be a greater distrust of health services generally. She is most likely to associate court proceedings with the local authority’s care plans for her baby and will negatively associate these proceedings with those. It is important, due to FG’s likelihood of future need for health interventions – both mental health and physical health (including her wish for future pregnancies) – that her trust in health services is maintained as much as possible. For the reasons set out above, it would not be in FG’s best interests to find out about these proceedings other than in a very controlled and therapeutic environment and not in the short-term future or during a period of mental ill-health.”

Analysis

[49]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.[50]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.[51]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.[52]In those circumstances I was satisfied that FG lacked the capacity a) to make decisions about her welfare and medical treatment; and b) to litigate[53]Further I was satisfied on the evidence before me that: a) FG was a very fragile and vulnerable individual; b) she was likely to react adversely to the stresses and pressures of child birth; c) she was likely to consider advice, care and interventions by the medical professionals attending to be part and parcel of her perceived conspiracy by them to murder her; and d) whilst it might have been possible to persuade her to behave and respond co-operatively during labour, there was a very real risk that she would act impulsively and uncontrollably and harm herself and/or her baby – whether directly or indirectly.[54]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.[55]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.[56]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.[57]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.[58]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.[59]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.[60]In the premises I was satisfied I should make the orders sought by the Trusts, with the consent of the Official Solicitor, to: a) permit the Trusts to take the steps in the medical treatment of the mother during her labour as set out in paragraph 34 above; b) permit the Trusts not to notify FG; and c) make a RRO in the terms sought.

Subsequent Events

[61]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.[62]The local authority instituted public law proceedings in respect of the child.[63]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.[64]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: “It is therefore my opinion that it is in her best interests to be informed of the fact and nature of the Court of Protection Proceedings now. I note that FG remains very paranoid regarding members of the mental health trusts staff and regarding their intentions towards her. She appears somewhat more prepared to engage with people from outside the Trusts and it may therefore be that the most appropriate person to inform her would, in fact, be her Solicitor. “ “It remains my opinion that publication of the name of the Trust or Hospital or County where FG is being treated would risk her being identified as she is the only patient here who is in anything like the current circumstances or situation”.[65]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.[66]Accordingly I discharged the relevant paragraph of the order of 22 May and made a declaration that she should be informed of this matter.[67]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.[68]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.[69]Accordingly I was invited by the trust and the Official Solicitor to continue the current RRO.[70]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.[71]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 a) the RRO should be discharged; or b) a RRO should continue for a further period of time but in narrower and more focused terms; and 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

[72]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.[73]There is concern that in a number of recent cases there has not been a full appreciation or understanding of: a) the planning to be undertaken in such cases; b) the procedures to be followed; c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and d) the evidence required to support an application to the court.[74]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).[75]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.[76]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.[77]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.[78]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.[79]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].[80]The Guidance is set out in the annex to this judgment.[81]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.[82]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’).[83]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.[84]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.[85]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:
“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment.”
[86]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.[87]In the course of giving judgment in Tameside and Glossop Wall J, as he then was, observed:
“…in cases in which the question of restraint arose or was likely to arise, and the doctor was doubtful about the lawfulness of the application of restraint or the use of force, an application should be made to the court for a declaration that the treatment would be lawful.”
[88]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: (1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons. (3) Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital. … (7) For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition.[89]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.[90]Care or treatment may be provided to P without the authorisation of the court under the provisions of s 5 MCA. This provides that: 5 Acts in connection with care or treatment(1) If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if— (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes— (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P's best interests for the act to be done.(2) D does not incur any liability in relation to the act that he would not have incurred if P— (a) had had capacity to consent in relation to the matter, and (b) had consented to D's doing the act.(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.(4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).[91]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)).[92]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)).[93]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.[94]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.[95]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.[96]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.[97]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.[98]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.[99]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.[100]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 periodwhilst 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.[101]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.[102]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.[103]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: 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 2. there is a real risk that P will be subject to more than transient forcible restraint; or 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 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 s 4B of or Schedule A1 to the MCA).[104]I agree.[105]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.[106]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[107]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.[108]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.[109]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.[110]Accordingly an uncomplicated planned caesarean section will not of itself amount to SMT.[111]A proposed caesarean section may, however, become a case of SMT where: a) they are factors in P’s medical or obstetric history which means she faces a higher risk of complications (PD9E paras 3 and 4); or b) because of P’s psychiatric condition, the intervention proposed may cause a deterioration in her psychiatric condition which causes her not to be compliant and a degree of force to restrain P is required to carry out the intervention (PD9E para 6 ( c)).[112]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.[113]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[114]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.[115]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.[116]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:
“an application should be made to Court where there is a real risk that P will be subject to more than transient forcible restraint, even where authorisation for such restraint could be obtained under the Mental Capacity Act, the almost inevitable result of the Court giving such guidance is that Trusts will feel compelled, out of an abundance of caution, to make an application to the court in every case – particularly as restraint including the administration of an anaesthetic will be required in all cases where surgical intervention is required.”
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.[117]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.[118]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.[119]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.[120]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[121]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: “significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary”.[122]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.[123]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[124]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.[125]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.[126]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.[127]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.[128]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.[129]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.[130]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.

order

COP Rules and 92 and PD13A paragraph 27.

Cited in 22 later judgments

and 13 more of the most senior