King’s College Hospital NHS Foundation Trust & Anor v RKG & Anor [2026] EWCOP 30 (T3)

[2026] EWCOP 30 (T3)Case No COP13720078
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 July 2026
Before
MRS JUSTICE THEISVICE PRESIDENT OF THE COURT OF PROTECTION
Between
King’s College Hospital NHS Foundation TrustApplicantsSouth London and Maudsley NHS Foundation TrustApplicant(1) RKG (by her litigation friend the Official Solicitor)Respondents(2) London Borough of SouthwarkRespondent
Vikram Sachdeva KC (instructed by Bevan Brittan LLP) for ApplicantsClaire Watson KC (instructed by the Official Solicitor) for First RespondentFrancis Hoar (instructed by London Borough of Southwark Legal Services) for Second RespondentHearing Hearing dates: 21 and 22 July 2026Judgment: 23 July 2026
Approved Judgment.............................This judgment was delivered in public but a transparency order dated 20 July 2026 is in force. 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 RKJ or members of their family and the professionals caring for RKG and the hospitals they are receiving treatment at must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Mrs Justice Theis DBE:
[1]The court is concerned with an application by King’s College Hospital NHS Foundation Trust and South London and Maudsley NHS Foundation Trust (‘the Trusts’) in relation to RKG.[2]The Trusts seek declarations that RKG lacks capacity to conduct proceedings and make decisions about her obstetric care, treatment for her HIV and HIV treatment for her unborn child. If those declarations are made they further seek declarations that it is in her best interests to deliver the baby by elective caesarean section and to receive antiretroviral therapy (‘ART’) in accordance with the Obstetric Care Plan, HIV Care Plan, Care Plan for Baby (to the extent it authorises treatment to RKG pre and during labour) and the Conveyance Plan (‘the plans’) filed with the application. The proposed date for the caesarean section is 3 August 2026. The plans cover the situation in the event that RKG goes into labour before the planned caesarean section. The first Trust is responsible for RKG’s obstetric care and treatment for her HIV. The second Trust is responsible for her mental health care.[3]The respondents to the application are RKG, through her litigation friend the Official Solicitor, and the London Borough of Southwark (the local authority). They Official Solicitor supports and the local authority does not oppose the application.[4]The Trusts have filed evidence from the following medical witnesses in support of their application:(1) Dr A, Consultant Psychiatrist(2) Ms A Consultant Obstetrician(3) Dr B Consultant in Human Immunodeficiency Virus (HIV)/ Genitourinary (GU) Medicine(4) Dr C Consultant Neonatologist (statement filed in related proceedings under the Inherent Jurisdiction concerning the unborn child) Dr A, Ms A and Dr B gave oral evidence.[5]The court had evidence about RKG’s wishes and feelings through the witness statement from the agent instructed by the Official Solicitor, who visited RKG on 20 July 2026.[6]RKG attended some of the hearing remotely.[7]A separate application has been made by the Trusts under the Inherent Jurisdiction and Children Act 1989 for declarations and orders authorising the urgent administration of HIV post-exposure prophylaxis to RKG’s baby to prevent establishment of HIV infection following exposure during pregnancy, labour and delivery. I have made a procedural order in those proceedings, in accordance with Manchester University NHS Foundation Trust v PP [2025] EWHC 783 (Fam). The effect of that order is to establish a process whereby on the birth of the child, when the court will have jurisdiction, orders can be made without delay to enable such medication to be given if required. The evidence establishes, particularly in the statements of Dr C and Dr B, that such treatment is required within four hours of birth.

Background

[8]RKG is a 30 year old woman who is 37+1 weeks pregnant with her third child and has HIV.[9]RKG has a diagnosis of paranoid schizophrenia and since 10 July 2026 is detained under s2 Mental Health Act 1983 (MHA).[10]RKG was diagnosed with HIV in 2016 when living abroad. She moved to this jurisdiction in 2017.[11]RKG came to the attention of mental health services in April 2020 when she was taken to hospital by her family due to changes in her behaviour with paranoid ideas and aggression towards a family member. RKG presented with manic and psychotic symptoms.[12]RKG disclosed she was pregnant in September 2020 and her mental health deteriorated in October 2020 with ongoing psychotic symptoms, having disengaged with HIV treatment and antenatal care.[13]In December 2020 RKG was detained under s2 MHA and admitted to hospital at 20 weeks’ gestation. In January 2021 RKG was detained under s3 MHA.[14]RKG was referred to the first Trust for antenatal care at 29 weeks’ gestation. Following a change in medication there was a marked improvement in her mental health and she accepted the need for HIV treatment, the need for a caesarean section for her own health and to reduce the risk of HIV transmission to the baby. RKG was considered to have capacity to make decisions about her psychiatric and obstetric care at that stage. RKG was discharged from s3 MHA in early February 2021.[15]Shortly afterwards in February 2021 there was a deterioration in RKG’s mental health and she was detained again under s2 MHA. During that admission her HIV viral load was high which indicated non-compliance with her HIV medication, she was assessed to have ongoing psychotic symptoms and did not believe she had HIV or any mental illness. RKG was assessed to lack capacity to make decisions about her obstetric care and treatment and her treating team considered it was in her best interests to have an elective caesarean section. Before the planned date RKG went into spontaneous labour and her child was delivered by emergency caesarean section in March 2021.[16]RKG was discharged from s3 MHA in April 2021.[17]In 2022 RKG fell pregnant again. Her psychosis was in remission with no concerns about her mental health and her second child was born by vaginal delivery in April 2023.[18]In August 2024 RKG’s mental health deteriorated again and she was detained under section 3 MHA. She had improved by September 2024 and was discharged.[19]There was a further relapse in 2025 when RKG denied the diagnosis of HIV, disengaged from the mental health services and stated she had stopped taking her antipsychotic medication. In July 2025 RKG absconded before a mental health assessment could be completed.[20]In December 2025 RKG presented at her parents’ home in a distressed state.[21]At a meeting with the local authority in June 2026 the children’s social worker suspected RKG was pregnant, which was subsequently confirmed. At this time there were concerns that RKG was suffering another relapse of psychosis with underlying paranoid delusions.[22]In July 2026 a s135 MHA warrant was obtained. Following a mental health assessment RKG was detained under s 2 MHA on 10 July 2026. RKG declined all medication, and did not believe she had HIV or needed HIV medication. RKG initially refused oral antipsychotic medication but accepted a single intramuscular dose of olanzapine on 14 July 2026 followed by intramuscular zuclopenthixol the following day.[23]Following the assessment that she lacked capacity to make decisions regarding her obstetric care, the treatment of her HIV and the HIV treatment for her unborn child this application was made on 17 July 2026.[24]I gave directions on 20 July 2026, and the hearing took place on 22 July 2026. At the conclusion of that hearing I made orders granting the application for the reasons set out below.

Evidence

[25]A formal assessment of RKG’s capacity was undertaken by Dr A on 14 July 2026. Dr A concluded that RKG was unable to understand, use or weigh the information relevant to the decisions due to an acute relapse of paranoid schizophrenia. In the assessment in the COP3 form Dr A stated:
“[RKG] is unable to use and weight relevant information. Despite repeated explanations from obstetric, psychiatric and HIV professionals, she consistently dismisses significant risks to herself and her baby. She continues to advocate for a vaginal or water birth and opposes caesarean section whilst failing to balance these views against the medical consequences of untreated HIV infection and inadequate antenatal care. Her decisions are driven by fixed psychotic beliefs and denial rather than a balanced consideration of risks and benefits. … [RKG] is unable to weigh the benefits of HIV treatment against the risks of non-treatment because she rejects the validity of the HIV diagnosis itself. Her decisions are entirely based on the fixed belief that she does not have HIV. Consequently, she cannot engage in a balanced consideration of treatment options…”
[26]In his statement Dr A states that although it is difficult to predict how quickly the antipsychotic medication will take effect, generally improvement can be seen within a few days to two weeks. Dr A considers there is a reasonable prospect RKG’s capacity may improve over the next three weeks if her psychotic symptoms respond to treatment as they have done in the past. In oral evidence he described limited change in RKG’s presentation since the antipsychotic medication and the second dose had been delayed due to concerns regarding tachycardia. There would be daily reviews of RKG as to when the medication should next be given. His view is that although improvement is possible he is unable to conclude that RKG will regain sufficient decision-making capacity within the next three weeks to enable RKG to make capacitous decisions regarding delivery of her baby and HIV treatment for herself or her baby. Dr A does not consider it clinically appropriate to rely upon anticipated improvement when making decisions that are required urgently in relation to the remainder of her pregnancy or HIV related treatment for her or her baby.[27]Ms Watson KC asked Dr A about the impact on RKG’s mental health of having a caesarean section against her wishes. Dr A considered that mode of delivery was a safer and less stressful option for RKG and her baby.[28]In her statement Ms A details RKG’s obstetric history, and her review of RKG on 16 July 2026 where she noted regarding RKG’s mental capacity ‘[RKG] was unable to retain the information I was giving her about her antenatal care and choices for birth. Her communication remains confused with flight of ideas. She was not able to concentrate on the information I was giving her and was pre-occupied by previous events in her pregnancy’.[29]In her statement Ms A outlines the risk factors in RKG’s pregnancy and delivery including that she presented herself to maternity services at a late stage of her pregnancy, she has untreated HIV, she previously had a caesarean section with the resulting risk of uterine rupture in a spontaneous labour and she may have a UTI infection. Ms A also outlines a number of unknowns as RKG has declined the usual antenatal tests, these include her possibly having anaemia and/or gestational diabetes. She concludes that RKG is considered to be a high-risk pregnancy and delivery.[30]The obstetric and conveyance care plan and the rationale that lays behind them are set out in Ms A’s statement which include the risk that RKG may not be compliant during labour, she may not tolerate the monitoring that is required and her mental health could deteriorate during labour. As Ms A observed in oral evidence, RKG has been unwilling to consent to even the most basic monitoring of her pregnancy through blood tests, urine tests and scans.[31]Ms A’s view is that RKG should have a planned caesarean section at 39 weeks as that presents the least risks for RKG and her baby. In reaching that conclusion she has taken into account the risks inherent in having such a procedure. The obstetric plan provides that in the event RKG goes into spontaneous labour before the due date, an obstetric consultant will attend to assess RKG’s mental health, advancement of labour and health of the unborn baby and make final decisions about the mode of delivery.[32]In oral evidence Ms A said she was part of the team that oversaw RKG’s first birth in 2021. Ms A said RKG then, as she has now, spends a lot of time talking about her baby and, in her view, RKG would be very upset if she had not done everything to help her baby. Ms A confirmed that the main benefits of a planned caesarean section is that it would remove the risks to RKG and her baby through non-compliance, it would ensure the optimal clinical team would be present and reduce the risks of vertical transmission of HIV to the baby. Ms A recognised and had weighed in the balance the risks of that procedure, including the future increased risks of uterine rupture following two caesarean sections.[33]Dr B outlines the HIV care plan in two statements. She was the consultant involved in RKG’s care during the pregnancy of her first child. She is the lead consultant for RKG’s HIV care and treatment during this pregnancy. She saw RKG on 13 July 2026, RKG refused to see her on 15 July 2026 and then saw her on 20 July 2026.[34]In her statements she outlines the risks and complications associated with HIV which include opportunistic infections, the increased risk of cancers, cardiovascular disease, kidney and/or liver disease and neurological complications.[35]The mainstay of treatment for HIV is ART which block the virus at different stages, reduces the amount of virus in the body and allows the immune system to recover. The treatment can be in oral tablet form although some ART agents are available in intramuscular form. RKG is resistant to one of the agents within the intramuscular combination so she requires oral tablet ART. The treatment rapidly reduces the risks of complications associated with untreated HIV. The earlier the treatment is started the greater the risk reduction. If treatment is not being taken regular medical monitoring is essential as HIV can progress undetected by symptoms.[36]Dr B outlines RKG’s inconsistent history regarding taking her HIV medication, most recently not attending any HIV clinical appointments since April 2025. Since her recent admission on 10 July 2026, RKG has refused oral HIV medication and for blood tests to be taken. Dr B reviewed RKG on 13 July 2026 when RKG refused to accept she had HIV. In her most recent meeting with RLG on 20 July 2026 RKG maintained she is not living with HIV, there had been an error in diagnosis and again refused blood tests.[37]Dr B outlines the risk factors for RKG noting that whilst her markers for her immune function were reasonably good in April 2025 ‘immune function can decline quickly when not taking HIV medication and it may now be below the threshold of 200 which is where HIV-related complications may arise’. Dr B states whilst her HIV viral load has not been measured since 2023, she would ‘expect it to be high as she is not taking medication’. She concludes ‘Our reasonable working assumption is that [RKG’s] viral load is high and her immune function is low. This places her at greater risk of HIV-related complications in the short, medium and longer-term. It is possible that she is already experiencing HIV-related complications, that haven’t yet manifested in overt physical signs/symptoms. On the other hand, it is also possible that she isn’t experiencing HIV-related complications. In any event, with a high HIV viral load and a lower immune function, she remains at real, ongoing and current risk of HIV-related complications’. Dr B considers RKG requires an urgent blood test to assess her immune status and her HIV viral load. Also, RKG should re-start her ART as soon as possible and remain on it, as this provides her with the best chance of avoiding HIV related complications and reduce the risk of mother-child transmission of HIV. In her second statement her opinion is elective caesarean reduces the likelihood of vertical transmission of HIV by approximately 50%.[38]In her second statement Dr B deals with the British HIV Association (BHIVA) 2025 guidelines. In the recommendations section of the guidelines at section 10.9 they state: ‘We recommend planned caesarean section where HIV load is 50-399 copies/mL, taking into account the actual viral load, the trajectory of the viral load, length of time on treatment, adherence, obstetric factors and the views of the woman/person (Grade 1C). The guidelines recommend a caesarean section where the HIV viral load is more than 400 copies/mL.[39]Dr B recognises that they do not know RKG’s viral load as they have not been able to take blood tests, but considers on the following analysis that RKG falls within the BHIVA guidelines recommending a caesarean section. Dr B estimates that RKG’s viral load is now likely to be above 20,000 copies/mL based on the following analysis. RKG has not had ART since at least 10 July 2026 and may not have had it since 2023. When RKG was not on ART in 2017 her viral load was 37,868 copies/mL. During her first pregnancy in 2021 there was a period when she was discharged from detention under the MHA when she allegedly did not take ART. Then her viral load was 587 copies/mL on 27 January 2021 and when repeated two weeks later on 11 February 2021 it was 19,535 copies/mL.[40]In oral evidence she confirmed her agreement with the statement from Dr C and emphasised from her clinical experience the enormous complexities and lifelong consequences for a child of having HIV.[41]Dr C outlines the risks in relation to RKG and the baby from HIV. Transmission to the baby can occur during pregnancy, during labour and delivery or during breastfeeding. The risk of transmission during pregnancy is relatively low but is still significant if the maternal HIV viral load is high. Optimal management of RKG’s HIV during pregnancy would have been to start ART medication pre-conception and during the pregnancy. This has not happened. Dr C considers even starting ART now would reduce RKG’s viral load and thereby reduce the likelihood of transmission to the baby. The risk of transmission during labour and delivery is high due to the baby’s exposure to maternal blood and genital secretions.[42]Dr C sets out that HIV infection acquired during the neonatal period is a lifelong medical condition. Untreated infection may lead to progressive immune deficiency, recurrent serious infections, impaired growth and development, neurological complications, malignancy and risk to life. Dr C confirms that where the baby has been assessed as requiring HIV post-exposure prophylaxis, the balance of risks strongly favours treatment and should be done within four hours of birth. Failure to do so when clinically indicated exposes the baby to a potentially avoidable risk of acquiring lifelong HIV infection, the consequences of which are profound and irreversible.[43]The evidence from Ms S, the agent for the Official Solicitor, provides details of her visit to RKG on 20 July 2026. RKG maintained her denial of having HIV, stating the doctors are wrong. She also did not agree to giving birth by way of a caesarean section stating she wanted a hospital water birth to avoid the risks of surgery. RKG knew the sex of her baby and confirmed she wanted to deliver a healthy baby giving them the best start in life.

Legal framework

[44]Sections 1 – 3 MCA 2005 set out the relevant statutory framework that underpin determinations regarding capacity.[45]In her position statement Ms Watson KC provides a very helpful summary of the relevant principles as follows:a. A person must be assumed to have capacity unless it is established that she lacks capacity: s.1(2): the burden is on the party asserting a lack of capacity to establish it on the balance of probabilities: CC v KK & STCC [2012] EWHC 2136 (COP), per Baker J, at [18].b. The determination of capacity under Part 1 of the MCA is always ‘decision specific.’c. A person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s.1(3)d. Any lack of capacity must result from an impairment of, or a disturbance in, the functioning of the person’s mind or brain: s.2(1).e. It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary: s.2(2).f. A lack of capacity cannot be established merely by reference to an aspect of her behaviour, which might lead others to make unjustified assumptions about her capacity: s.2(3).g. A person is to be treated as unable to make the decision on the matter in issue for herself if she is unable to(i) understand the information relevant to the decision;(ii) retain that information;(iii) use or weigh that information as part of the process of making the decision; or(iv) communicate that decision: s.3(1).h. A person is not to be regarded as unable to understand the information relevant to a decision if she is able to understand an explanation of it given to her in a way that is appropriate to her circumstances (using simple language, visual aids or any other means): s.3(2)i. The fact that a person is able to retain the information relevant to a decision for a short periodonly does not prevent her from being regarded as able to make the decision: s.3(3).j. The ‘information relevant to the decision’ includes information about the reasonably foreseeable consequences of deciding one way or another: s.3(4)(a).k. The Court should guard against overcomplicating what is the ‘information relevant to the decision’ for the purposes of s.3. i. Baker J (as he then was) stated in CC v KK & STCC [2012] EWHC 2136 (COP), at [69], it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. ii. In A Local Authority v JB [2021] UKSC 52 the Supreme Court held that:
“P’s ability under section 3(1)(c) MCA to use or weigh information relevant to the decision as part of the decision-making process “should not involve a refined analysis of the sort which does not typically inform the decision … made by a person of full capacity”: In re M (An Adult) (Capacity: Consent to Sexual Relations) at para 81. It would also derogate from personal autonomy to require a potentially incapacitous person to undertake a more refined analysis than persons of full capacity.” l. A person is not to be treated as unable to make a decision merely because she makes an unwise decision: s.1(4). As Peter Jackson J stated in Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7]: “The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.”
[46]In A Local Authority v JB (ibid) the Supreme Court noted that the two questions the court is required to answer under section 2(1) MCA are:(i) Whether P is unable to make a decision for herself in relation to the matter; and(ii) If so, whether that inability is ‘because of’ an impairment of, or disturbance in the functioning of, the mind or brain.[47]In accordance with section 1(5) MCA any act done or decision made under the MCA for or on behalf of a person who lacks capacity must be done, or made, in their best interests. Section 4 MCA sets out the matters the court should take into account when determining that issue, including the person’s past and present wishes and feelings and their beliefs and values.[48]In assessing best interests the court considers the wide canvas of evidence including medical, emotional, psychological issues. In Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67 Baroness Hale stated at [39]:
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”
[49]The court also needs to consider RKG’s rights under Articles 3 and 8 of the European Convention on Human Rights.

Discussion and decision

[50]Dealing first with capacity, the relevant decisions are medical treatment for HIV generally for RKG and her unborn child and obstetric care including mode of delivery. The evidence from the clinicians establishes that RKG consistently denies that she has HIV, despite repeated tests that confirm she does. RKG has expressed the view that the HIV tests were fabricated, incorrect or manipulated by healthcare professionals. RKG has repeatedly rejected information and advice regarding the risks of untreated HIV infection to herself and her unborn child.[51]The evidence from Dr A, supported by the assessments undertaken by the other clinicians, which I accept, demonstrates that RKG is unable to use or weigh the advantages or disadvantages of receiving HIV treatment for herself, antenatally and during labour for both herself and her unborn child. RKG is also unable to use or weigh the advantages and disadvantages of the different modes of delivery and the effect each mode will have on vertical transmission of HIV to her unborn child. Finally, it is clear RKG is unable to use and weigh information about her child receiving HIV treatment immediately at birth and the effect on her mental health if her child suffers harm and/or contracts HIV.[52]Whilst it is right RKG has on previous occasions had periods when she has regained capacity, I am satisfied that her capacity is unlikely to improve in the short timescales within this application. RKG may go into spontaneous labour at any time and the planned caesarean section is less than two weeks away. It is clear from the medical evidence the clinicians will continue to carefully assess RKG’s capacity.[53]Turning to her best interests RKG has a high risk pregnancy. She is likely to have a high HIV viral load with the result that her immune function is low. The consequence of this is that it puts her at greater risk of HIV-related complications. These include opportunistic infections, HIV-related cancers, cardiovascular disease, kidney disease, liver disease and neurological problems. This compares to the relatively low risks associated with HIV medication.[54]The evidence from Dr B and Dr C is clear that RKG’s unborn baby is at real and ongoing risk of contracting HIV as against the low risk of taking such medication on the unborn baby. As Dr C outlines there are lifelong consequences for the unborn child if it contracts HIV.[55]In her evidence Ms A remains clear that a planned caesarean section is in RKG’s best interests taking into account RKG’s wish to have a vaginal delivery and water birth. Ms A considers that the chances of vertical transmission of HIV to her unborn baby will be very much lower which has benefits for RKG’s mental health. Ms A was involved in RKG’s pregnancy and delivery in 2021. Then, when RKG had capacity she understood and agreed with the medical advice regarding a caesarean section as being best for the baby. Ms A considers that if RKG had capacity now that is what she would want. Also, there are very great concerns that RKG will not be compliant during labour and follow instructions, which will put her and her baby at risk. As Ms A notes RKG has been unwilling to agree to even the most basic monitoring during the pregnancy through blood and urine tests and scans. Ms A’s conclusions are supported by Dr B.[56]The obstetric care plan also sets out the plans in the event that RKG goes into spontaneous labour, which are supported by the same rationale in relation to the planned caesarean section.[57]Whilst it is right that RKG does not agree with what is proposed, she wants to deliver a healthy baby and give them the best start in life. In 2021, when she had capacity, that is what she did.[58]I have reached the very clear conclusion that it is in RKG’s best interests for the application to be granted. Whilst I recognise this is against her wishes the medical evidence is clear and compelling and, in my judgment, would be likely to be followed by RKG if she had capacity, as she did in 2021, and would accord with her wishes now to deliver a healthy baby.