University Hospitals of Derby and Burton NHS Foundation Trust & Anor v HH [2026] EWCOP 35 (T3)

[2026] EWCOP 35 (T3)Case No COP20037455
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 August 2026
Before
MRS JUSTICE THEISVICE PRESIDENT OF THE COURT OF PROTECTION
Between
University Hospitals of Derby and Burton NHS Foundation TrustApplicantsDerbyshire Healthcare NHS Foundation TrustApplicant(1) HH (by her litigation friend the Official Solicitor)Respondent
Jenni Richards KC (instructed by NHS Foundation Trust Legal Services) for ApplicantsJake Rylatt (instructed by the Official Solicitor) for RespondentHearing Hearing date: 4 August 2026Judgment: 4 August 2026
Approved Judgment.............................This judgment was delivered in public but a transparency order dated 4 August 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 HH or members of their family and the professionals caring for HH 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 byUniversity Hospitals of Derby and Burton NHS Foundation Trust and Derbyshire Healthcare NHS Foundation Trust (‘the Trusts’) in relation to HH.[2]The Trusts seek declarations that HH lacks capacity to conduct proceedings and make decisions about her obstetric care. If those declarations are made, they further seek declarations that it is in her best interests to deliver the baby by elective caesarean section if at any stage during her labour it is determined that continuing the induction of labour is no longer safe and that a caesarean section is required in accordance with the Obstetric Care Plan (‘the Care Plan’) dated 20 July 2026. The proposed date for delivery is 11 August 2026. The plan covers the situation in the event that HH goes into labour before that date. The first Trust is responsible for HH’s obstetric care. The second Trust is responsible for her mental health care.[3]The respondent to the application is HH, through her litigation friend the Official Solicitor. The Official Solicitor’s position at the conclusion of the evidence was to support the application.[4]The Trusts have filed evidence from the following medical witnesses in support of their application:(1) Dr A, Consultant Psychiatrist(2) Dr B Consultant Obstetrician(3) Dr C Consultant Obstetrician(4) Dr D Consultant Anaesthetist(5) Ms E Consultant Midwife Dr C gave oral evidence.[5]The court had evidence about HH’s wishes and feelings through the witness statement from the agent instructed by the Official Solicitor, who visited HH on 28 and 30July 2026.[6]The court is very grateful to the legal teams for the very effective way these proceedings have been conducted. Mr Stark, the solicitor for the first Trust, has been very helpful in keeping the court fully updated regarding any developments.

Background

[7]HH is a 30 year old woman who is now 37 weeks pregnantwith her second child. Her estimated due date is 25 August 2026. The Care Plan is to deliver the baby on 11 August 2026.[8]HH has a diagnosis of paranoid schizophrenia and is currently experiencing an acute psychotic episode characterised by paranoid delusions, hostility and agitation. HH has been detained under s3 Mental Health Act 1983 (‘MHA’) since 5 June 2026.[9]HH came to the attention of mental health services in 2015 following the breakdown of a relationship.[10]HH is recorded as having been part of a close family until the age of 15 years when she entered into an abusive relationship with an older man. HH later formed a relationship with the father of her 10 year old child, but following an altercation with him in December 2020 she spent 11 months in prison. During that period she was evicted and her partner lost custody of the child, who was placed in long term foster care, where he remains with provision for indirect contact with HH.[11]On release from prison HH did not engage with probation and was recalled to prison in October 2021.[12]Following her discharge from prison in December 2021 HH had no settled accommodation, was living on the streets, experienced deterioration in her mental health and experienced a number of abusive relationships.[13]In 2022 HH was admitted to hospital following an episode of drug induced psychosis and was diagnosed with acute and transient psychotic disorder and cannabis induced psychotic disorder.[14]HH was admitted under s3 MHA from November 2024 to January 2025 when the diagnosis of paranoid schizophrenia was established. HH had been under the Early Intervention in Psychosis team for three years and was on fortnightly Zuclopenthixol depot, that was changed to oral medication. Subsequent non-compliance with oral anti-psychotic medication has contributed to the recent relapse.[15]HH initially contacted the British Pregnancy Advisory Service (BPAS) in February 2026 as she was planning a termination of pregnancy. HH reported to her mental health team that a termination had taken place. It later transpired that in April 2026 HH attended BPAS and they confirmed a 21 week pregnancy.[16]HH failed to attend antenatal appointments in April 2026.[17]Dr B first met HH on 7 May 2026. HH told Dr B her mental health was stable and Dr B considered she had capacity to make the relevant decisions stating HH ‘reported feeling happy about the pregnancy, connected and protective of the baby and reported she enjoyed feeling fetal movements.’ Dr B stated HH demonstrated no psychotic symptoms or any of the perinatal mental health red flag symptoms.[18]On 11 May 2026 HH was reported to be acutely unwell with aggressive behaviour, agitation, poor sleep and increased paranoia reporting she was not pregnant and withdrew contact from her family.[19]On 12 May 2026 HH was assessed by the Mental Health Act assessment team when they noted her behaviour was acutely psychotic. She was detained under s2 MHA, admitted to hospital and her depot medication re-commenced. Following this HH was reported to remain highly agitated and aggressive, appearing to be openly responding to unseen stimuli. HH’s behaviour did not improve despite a short period in a Psychiatric Intensive Care Unit. As a result her medication was increased and she was transferred back to her placement in mid-June 2026, which is a mental health enhanced care unit.[20]Since HH has been there the mental health team describe her presentation as having been characterised by fluctuating engagement, hostility, agitation, apparent response to unseen stimuli, limited engagement with aspects of her treatment and antenatal care. HH was managed on enhanced 3:1 observations and continued to require episodes of physical and chemical restraint, with attempts to abscond from the unit. Her presentation was considered to present ongoing risks to her own health, the safety of others and the welfare of her unborn baby.[21]On 21 May 2026 HH was taken to the maternity ward with reduced fetal movements. They were unable to do cardiotocograph monitoring as HH refused and answered ‘no comment’ to questions. Fetal wellbeing was confirmed with an ultrasound scan.[22]On 25 May 2026 HH was brought to the maternity ward for a triage assessment due to a suspected spontaneous rupture of the membranes. HH was recorded as being extremely agitated and aggressive and responded ‘no comment’ to any questions. After repeated attempts the clinical team managed to take a cardiotacograph that met normal criteria and she was discharged.[23]On 12 June 2026 HH attended the antenatal clinic for an ultrasound scan and consultant review. HH was reported to engage well during the consultation, understood, retained, weighed up and communicated her preferences for the birth and was assessed as demonstrating capacity for her obstetric decision making stating her wish to have a vaginal birth and that she would prefer hormone induction.[24]On 22 June 2026 there was a joint visit by a community midwife and perinatal mental health midwife. They were informed by staff at the unit that there had been a recent incident when HH had hit two members of staff and had also been involved in another incident where she had held a knife towards another individual. During the consultation HH did not respond to introductions, questions or related offers to undertake maternal and fetal wellbeing checks. HH was described as maintaining intense eye contact, not speaking and did not engage.[25]On 30 June 2026 the midwifery perinatal mental health team were informed that HH had been placed in seclusion over the previous weekend following an assault on a staff nurse. HH had then absconded with her sister and been returned by the police the following day and appeared to be under the influence of alcohol.[26]At a subsequent appointment on 2 July 2026 with the perinatal mental health midwife and community midwife HH did not respond to questions other than to say ‘no comment’.[27]HH was transferred to her current placement on 10 July 2026 where she is under the care of Dr A, who has previous experience of HH.[28]On 10 July 2026 HH refused to attend for her antenatal clinic for her scan and it was re-arranged for 17 July 2026.[29]On 14 July Dr B performed a formal mental capacity assessment to assess HH’s ability to make decisions about her obstetric care. Dr B described HH as staring directly at her during the assessment and only at one point shaking her head in answer to a question as to whether she wanted to talk in a different room or after a break. Dr B concluded in relation to HH’s understanding that due to the nature of her presentation, recent reported history and difficult engagement, HH was unable to demonstrate understanding, ability to retain or to use and weigh information due to psychotic symptoms and disordered thought. As regards HH’s ability to communicate the decision the only communication HH made was to shake her head. Dr B concluded that HH’s functional inability to make a decision is directly linked to her psychosis and schizophrenia.[30]On 15 July 2026 an MDT meeting decided to bring HH to the antenatal clinic on 17 July 2026.[31]HH’s co-operation with her antenatal care improved on 17 July 2026. Dr B described her as being ‘engaged, communicated well and demonstrated understanding and retention of information’ although Dr B remained uncertain about her ability to use or weigh information with the possibility of disguised compliance. The birth plan was discussed with her.[32]HH’s behaviour on s17 MHA leave the following day described HH as being disruptive and racially abusive. HH’s s 17 leave was revoked and HH became disruptive on the ward, stopped compliance with medication and aggressively asked for leave.[33]On 20 July 2026 a comprehensive and detailed care plan was finalised that provides a careful and sensitively calibrated care plan with the aim to follow HH’s wishes regarding the birth of the baby in so far as that is consistent with HH’s best interests.[34]On 29 July 2026 HH was reviewed at an MDT meeting and limited section 17 MHA leave was agreed. HH pushed boundaries including abusive behaviour, wanting to buy alcohol and extended the time with the result that staff stated they would have to call the police to return her back to the ward.[35]On 31 July 2026 HH was reviewed by Drs B and C. In their joint statement they describe HH as ‘staring intently, was shut down and clearly very paranoid’. They were unable to get any response from her and she did not demonstrate capacity for decision making. They offered to reduce the number of people in the room and used as a reference point a discussion HH had had earlier with one of the midwives. This resulted in a conversation with HH where she demonstrated a basic understanding of some aspects of the birth plan but then shut down, became agitated and would not answer questions. Dr B stated HH ‘mostly replied through facial expressions and nods and shakes of her head for yes and no, but she did speak in single sentences in answer to some direct questions’. Dr B stated that when she checked HH understood that in an emergency that her or her baby’s life were at risk that a change to the plan of induction and vaginal birth may be needed, such as a caesarean, HH ‘looked at me and stared intensely, as has been described previously. She did not answer this question.’ In her oral evidence Dr C confirmed her opinion that HH lacks capacity to make decisions about the care plan or any decisions relating to the birth and she considered that it is very unlikely that HH will regain capacity prior to 11 August 2026.[36]In her statement Dr B states HH’s ‘presentation fluctuated even within the assessment, with time and persistence being needed. Obstetric emergencies may, of course, not allow that time. Her ongoing fluctuation of obstetric decision making arising from her paranoid psychotic presentation risks the strong possibility that she will become acutely distressed, lack capacity for the birth plan and require engagement of restraint in an emergency situation’. Dr B makes clear that they will follow her consent where she has capacity and even if she lacks capacity they will try and facilitate her wishes wherever possible and make it clear they will only escalate to restraint as ‘a proportionate response to the risk of harm and where in her best interests’.

Legal Framework

[37]Sections 1 – 3 MCA set out the relevant statutory framework that underpin determinations regarding capacity.[38]At [45] in Kings College Hospital NHS Foundation Trust and South London and Maudsley NHS Foundation Trust v RKG and others [2026] EWCOP 30 I set out the helpful summary of the relevant principles provided by Ms Watson KC 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.”
[39]In A Local Authority v JB (ibid) the Supreme Court set 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.[40]In Leicestershire County Council v P [2024] EWCOP 53 I concluded at [137] that there is jurisdiction to make anticipatory declarations regarding capacity under s 15 MCA and that whether the jurisdiction should be exercised or not will depend on the facts of each case. As Hayden J observed in GSST & SLAM v R [2020] EWCOP 4 at [36] ‘In making a declaration that is contingent upon a person losing capacity in the future, the Court is doing no more than emphasising that the anticipated relief will be lawful when and only when P becomes incapacitous’. Hayden J also confirmed in that case at [47] the availability of the inherent jurisdiction regarding any deprivation of liberty.[41]Turning to best interests 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.[42]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.”
[43]The court also needs to consider HH’s rights under Articles 3 and 8 of the European Convention on Human Rights.

Submissions

[44]On behalf of the Trusts Miss Richards KC submits that the evidence of Dr B and Dr C regarding HH’s capacity is that she currently lacks capacity to take decisions regarding her obstetric care and treatment. Dr B considers that HH’s capacity and insight appears changeable and difficult to predict. Dr B’s evidence is that whilst they will try to facilitate HH’s wishes with regard to the delivery plan there may come a time when her distress and aggression may result in a change in her insight and a lack of mental capacity. Dr C in her oral evidence confirmed that save for the initial appointment in May 2026 Dr B considered HH lacked capacity in the appointments since then to make decisions regarding her obstetric care, and that remained the position. Dr C considered it unlikely HH’s capacity will change before 11 August 2026.[45]Miss Richards submits that the court should make a declaration regarding HH’s current lack of capacity now, which is established on the evidence, and also make an anticipatory and contingent declaration authorising treatment in accordance with the proposed care plan in the event that HH is assessed as lacking capacity under s15(1)( c) MCA (see United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24; GSST & SLAM v R [2020] EWCOP 4 and Leicestershire County Council v P [2024] EWCOP 53 at [137]). Miss Richards submits that this approach ensures HH’s autonomy is protected.[46]In the proposed order the Trusts also provide that to the extent which the care and treatment provided to HH in accordance with the care plan amounts to a deprivation of liberty such deprivation of liberty is authorised in the exercise of the court’s inherent jurisdiction. Miss Richards accepts the multi-factorial approach the court should now take in the light of the decision Re AGNI [2026] UKSC 16. She recognises that the purpose of any restraint would be to support the proposed care plan, that it is likely to be for a relatively short period of time and that her transportation to the hospital could, arguably, be permitted under s 17(3) MHA. However, where the care plan authorises up to 6:1 and provides for both physical and chemical restraint and where it is likely HH would be objecting to those arrangements, in the circumstances of this case, the restrictions amount to a deprivation of liberty.[47]Having heard the oral evidence from Dr C, Mr Rylatt, on behalf of the Official Solicitor, accepted the position taken by the Trust regarding capacity.[48]As regards best interests the Official Solicitor endorsed the following important features of the care plan as being in HH’s best interests:a. That a vaginal birth is to be prioritised, which accords with the wishes and feelings HH has expressed over a period of time. Induction of labour is booked for 11 August 2026. The plan provides that in the event of an obstetric emergency, or where HH’s mental health deteriorates to the extent that induction of labour, or labour itself, is no longer considered safe, then a caesarean section may be required.b. De-escalation is to be prioritised in the event of psychological deterioration, with any restrictive interventions (including restraint) to only be used “as a last resort where there is an immediate risk to [HH], her baby, staff or others, and where de-escalation has been unsuccessful”.c. If restraint does become necessary, it will only be undertaken by appropriately qualified and trained individuals, with use of the ‘Safety Pod’ for physical or chemical restraint where available “as this provides the safest environment for the administration of physical or chemical restraint” and “reduces the need for additional members of staff to be involved in the restraint, identifying it as the least restrictive option”.d. Specific forms of physical restraint, namely prone and supine restraint, are not to be utilised, and chemical restraint or rapid tranquilization are to be given consistently with applicable policy and advice from the Consultant Psychiatrist; ande. Consideration will be given to spinal anaesthesia if HH “is able to understand the risks associated with this type of anaesthetic and give informed consent, and if the team deem that she will be calm enough to be managed safely in theatre”.[49]The Official Solicitor agrees with the analysis of the Trusts regarding deprivation of liberty.

Discussion and decision

[50]There is now no issue between the parties regarding HH’s lack of capacity now to make decisions regarding her obstetric care.[51]I agree the evidence demonstrates over a sustained period of time, certainly since 12 May 2026, that HH has lacked capacity to make decisions regarding her obstetric care. Whilst there has been some variation in HH’s ability to communicate, especially with those who are familiar to her, the picture regarding her ability to understand, retain and use and weigh the relevant information is evident and is due her acute psychosis and schizophrenia. I accept the evidence of Dr B, in particular her detailed capacity assessment on 14 July 2026, and the evidence of Dr C that HH is unlikely to regain capacity before 11 August 2026.[52]Dr B’s evidence details that obstetric emergencies that can endanger both the mother and the child and they require immediate medical intervention and can occur during pregnancy, labour and after delivery. Types of obstetric emergencies include pre-eclampsia and eclampsia; placental abruption; maternal collapse/cardiac arrest; infections; pulmonary embolism; and postpartum haemorrhage. As Dr B states the management of all of these conditions “requires understanding and compliance from the pregnant patient to enable us to act safety and rapidly as medical practitioners to preserve the life of mother and baby”. The evidence demonstrates that the care team have been unable to assess HH’s wellbeing or that of her baby and in light of her ongoing lack of capacity and history of aggressive and violent reactions to staff there is, in Dr B’s assessment “a high chance of [HH’s] lack of capacity leading to missed identification and escalation or refusal of treatment in a life-threatening or emergency situation antenatally, during birth or during the postnatal period”.[53]It is important also that the court should make an anticipatory declaration regarding HH’s capacity to secure and protect HH’s autonomy. This aligns with the care plan that her capacity is being kept under regular review.[54]Turning to the care plan I agree the very detailed care plan meets HH’s best interests. It is a comprehensive plan that carefully provides for and maps out the complexities surrounding HH’s obstetric care. The care plan demonstrates how the experienced clinical team responsible for HH’s obstetric care are highly attuned to her particular needs. Having consulted with HH’s family, the Trust agree to include a provision that HH’s mother shall be present at the birth, if that is possible and remains consistent with the detailed arrangements in the care plan.[55]I recognise and weigh in the balance HH’s consistent wish to have a vaginal birth and not a caesarean section. That is a very important consideration and is set out in the care plan. However, on the evidence I also have to weigh in the balance that in circumstances where there is an immediate risk to HH, staff or others there may be no alternative but to proceed to a caesarean section under general anaesthetic. The evidence from the Consultant Anaesthetist sets out the careful and proportionate steps that will be taken when considering any alternatives less invasive than undertaking this procedure under general anaesthetic.[56]For the reasons set out above, I am satisfied that the care plan is in HH’s best interests.