North Bristol NHS Trust v R
[2023] EWCOP 5
The Shrewsbury and Telford Hospital NHS Trust v T & Anor
23 May 2023
[2023] EWCOP 20
Court of Protection
A hospital wanted the court to decide in advance how to deliver a pregnant woman's baby, in case she lost the ability to make decisions. The judge said no, because they waited too long to ask and the woman was already capable of making decisions, and an advance plan would be better.
Key Facts
- •T, a 39-week pregnant woman with a diagnosis of Persistent Delusion Disorder, was the subject of an application for an anticipatory declaration regarding her obstetric care.
- •T had been detained under the Mental Health Act 1983 but was assessed as having capacity regarding her obstetric care.
- •Concerns existed that T's fluctuating capacity might lead to loss of capacity during labour, potentially endangering herself and her baby.
- •The application was made only two working days after the Official Solicitor received the application bundle, despite the Trust's awareness of T's condition for several weeks.
- •The Midlands Partnership NHS Foundation Trust declined to conduct a capacity assessment.
- •T expressed willingness to prepare an advance statement outlining her wishes.
Legal Principles
The Court of Protection has the power to make anticipatory declarations where P has fluctuating capacity and there's a real risk of losing capacity concerning an important decision (s.15(1)(c) MCA).
Mental Capacity Act 2005
Applications concerning obstetric care where capacity is an issue should be made at the earliest opportunity, ideally no later than four weeks before the expected delivery date.
NHS Trust 1 and NHS Trust 2 v FG [2014] EWCOP 30; A University Hospital NHS Trust v CA [2016] EWCOP 51; Guys and St Thomas’ NHS Foundation Trust v R [2020] 4 WLR 96
The court should consider the need for careful planning, avoidance of delay, and a fully transparent process, respecting fundamental rights in obstetric cases involving potential capacity issues.
Guys and St Thomas’ NHS Foundation Trust v R [2020] 4 WLR 96
An anticipatory declaration is a draconian step and should only be granted when the evidence clearly supports it.
This judgment
Advance statements of wishes and feelings are a more appropriate method of addressing potential loss of capacity, preserving autonomy.
This judgment
The doctrine of necessity can protect the mother in true emergencies.
This judgment
Outcomes
The court declined to make the anticipatory declaration sought.
The application was made too late, preventing proper consideration by the court and Official Solicitor. The evidence did not show a sufficient risk of T losing capacity, only a 'small risk'. An advance statement was a more appropriate and less intrusive solution.