NHS Trust v FG  EWCOP 30,  MHLO 118
"I have been invited by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment. There is concern that in a number of recent cases there has not been a full appreciation or understanding of: (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."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Incapable person — Medical treatment — Person lacking capacity to consent to proposed obstetric treatment — Guidance given on appropriate applications to the court — Mental Health Act 1983, s 63 — Human Rights Act 1998, Sch 1, Pt 1, arts 3, 5, 6 — Mental Capacity Act 2005 (as amended by Mental Health Act 2007, s 50(2)(5), Sch 7), ss 1, 4B, 5, Sch 1A
NHS Trust 1 and another v FG
B;  WLR (D) 384
Ct of Protection: Keehan J: 28 August 2014
Where a person lacked capacity to consent to proposed obstetric treatment, an NHS trust should make an application to the court: (1) where medical intervention proposed in the delivery of a baby amounted to serious medical treatment; (2) where there was a real risk of possible use of more than transient forcible restraint; (3) where there was a serious dispute as to what obstetric care was in the person’s best interests; and (4) where the proposed obstetric care and/or the proposed measures used to facilitate it would amount to a deprivation of liberty. That guidance was not intended to restrict the cases where trusts made an application to the court to only those cases which fell within those categories; it had always to remain open to trusts to make an application to the court if the individual circumstances of the case justified it.
Keehan J, sitting in the Court of Protection, so stated in a reserved judgment when, with the consent of the Official Solicitor, making the orders sought by the applicants, NHS Trust 1 which had been providing obstetric care to the respondent mother, FG, and NHS Trust 2 which had been providing psychiatric care and services to her, to, inter alia, permit the trusts to take the steps requested in the medical treatment of the mother during her labour.
KEEHAN J said that the judgment should be read with the judgment of 27 June 2014 in X County Council v MM. FG suffered from a schizo-affective disorder with paranoid delusions. She had refused to take her prescribed medication and as a result her mental health had significantly and progressively deteriorated; she believed the clinical professionals caring for her were part of a conspiracy to kill her. In those circumstances his Lordship was satisfied that FG lacked the capacity (a) to make decisions about her welfare and medical treatment and (b) to litigate, and that, in the premises, the orders sought by the NHS Trust in respect of her medical treatment were in her best interests. In the event the mother had given birth to a healthy baby boy on 1 June 2014 by a normal vaginal delivery; she had been fully co-operative with the mental health and midwifery staff and no restraint or invasive medical treatment had been required.
The Official Solicitor had invited guidance on the steps to be taken when a local authority and/or medical professionals were concerned about, and dealing with, a pregnant woman who had mental health problems and potentially lacked capacity to litigate and to make decisions about her welfare or medical treatment. There was concern that in a number of recent cases there had 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. The guidance was set out in the annex to the judgment. For the purposes of the guidance the term “P” referred to a pregnant woman who lacked, or might lack, the capacity to take decisions about her antenatal, perinatal and post-natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness. The guidance should not be read as applying to every pregnant woman with a diagnosed mental health illness. No doubt in the vast majority of such cases it would not be necessary to make an application to the Court of Protection or to the Family Division of the High Court. It should be emphasised that P was assumed to have capacity in accordance with the provisions of section 1(2) of the Mental Capacity Act 2005 unless it was established to the contrary, even if she was detained under the provisions of the Mental Health Act 1983. Each case was fact-specific and decisions had to be made on the basis of the facts and circumstances of each individual. The guidance was intended: (i) to prevent the need for urgent applications to be made to the out-of-hours judge; and (ii) to ensure trusts did not rely inappropriately on the provisions of section 5 of the 2005 Act. Urgent applications to the out-of-hours judge had to be limited to those rare and few cases where a genuine medical emergency had arisen and an immediate court order was necessary. A failure to plan appropriately and/or a failure to identify a case where an application to the court might be required did not constitute a genuine medical emergency.
In appropriate circumstances section 63 of the Mental Health Act 1983 might authorise medical treatment when the primary purpose was to alleviate or prevent a worsening in P's psychiatric illness or its symptoms, using proportionate and necessary restraint without P’s consent: see Tameside and Glossop Acute Services NHS Trust v H (A Patient)  1 FLR 762Not on Bailii!. Care or treatment might be provided to P without the authorisation of the court under the provisions of section 5 of the 2005 Act but the clinicians had to have taken reasonable steps to determine whether P lacked the capacity to decide whether or not to undergo the obstetric care in question and had reasonably to believe that P lacked the requisite capacity and, at the time they provided the obstetric care in question, that it was in P's best interests to do so. So long as it did not amount to a deprivation of P's liberty, restraint could be used under section 5 provided that it was necessary to prevent harm to P and was a proportionate response to the likelihood of P suffering harm and the seriousness of that harm. What might amount to a deprivation of liberty was a fact-sensitive issue which must be determined in each individual case. The “acid test” for the determination of a deprivation of liberty was whether P was subject to continuous supervision and control and was not free to leave: see Surrey County Council v P (Equality and Human Rights Commission intervening)B, para 49. Trusts had to plan how P was to receive obstetric care in sufficient detail to identify whether there was potential for a deprivation of liberty to arise and had to take steps to ensure the deprivation of liberty was authorised in accordance with the law. Where the trust identified there was a real risk that P would suffer a deprivation of liberty it was for the trust to decide whether the same was achieved by a standard authorisation under Schedule A1 to the 2005 Act, by an application to the court or under another lawful jurisdiction.
Limiting himself to four observations, his Lordship said that: (i) a mental health patient (“P”) enjoyed all of the fundamental rights and freedoms guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms save to the extent that P’s liberty was restricted pursuant to the Mental Health Act 1983; (ii) restraint or measures to facilitate P’s obstetric care which amounted to a deprivation of liberty would interfere with her rights under articles 3, 5 and 8 of the Convention unless authorised in accordance with the law; (iii) total restraint for very short periods might amount to a deprivation of liberty: see H v Comr of Police of the Metropolis (Liberty intervening)B; and (iv) P’s lack of objection to obstetric care or any restraint used to facilitate it was irrelevant in determining whether the actions amounted to a deprivation of liberty: see Surrey County Council v P B, para 50. There were only three circumstances where a deprivation of liberty would be lawful without the court’s authorisation: (i) if it had been authorised by a valid standard or urgent authorisation under Schedule A1 to the Mental Capacity Act 2005, as inserted by section 50(5) of and Schedule 7 to the Mental Health Act 2007; (ii) if it was necessary, and undertaken wholly or partly for giving P life-sustaining treatment or for preventing a serious deterioration in P’s condition, but only for a limited period whilst a decision in respect of any relevant issue was sought from the court, by virtue of section 4B(2)–(5), as inserted by section 50(2) of the 2007 Act; (iii) under the common law doctrine of necessity. In relation to standard or urgent authorisations under Schedule A1 to the 2005 Act: (i) if P was “ineligible” to be deprived of her liberty in accordance with Part 1 of Schedule A1, neither a standard or urgent authorisation would be available to the trust; (ii) if the need for the deprivation of liberty in relation to the proposed obstetric care was foreseeable but the trust omitted to seek a standard authorisation, the use of an urgent authorisation might be unlawful; and (iii) the mere fact that a deprivation of liberty could be authorised under Schedule A1 did not absolve the trust from making an application to the court where the facts of the individual case would otherwise merit the same. There were clear and cogent reasons for identifying those few categories of cases where a trust should make an application to the court: (i) where medical intervention proposed in the delivery of a baby amounted to serious medical treatment; (ii) where there was a real risk of possible use of more than transient forcible restraint; (iii) where there was a serious dispute as to what obstetric care was in P’s best interests; (iv) where, applying the “acid test” in Surrey County Council v P the proposed obstetric care and/or the proposed measures used to facilitate it would amount to a deprivation of liberty. The guidance was not intended to restrict the cases where trusts made an application to the court to only those cases which fell within those categories; it identified those categories of cases which should be the subject of an application. It had always to remain open to trusts to make an application to the court if the individual circumstances of the case justified it. It was to be hoped that early and thorough planning in such cases would result in the proper identification of cases which required an application to the court and, on the contrary, those which could properly and appropriately be managed under the provisions of the Mental Capacity Act 2005 and/or the Mental Health Act 1983 without judicial involvement.
Appearances: Catherine Dobson (instructed by Legal Department, NHS Trust) for NHS Trust 1 and (instructed by Bevan Brittan LLP) for NHS Trust 2; Michael Horne (instructed by Official Solicitor) for FG, by her litigation friend, the Official Solicitor.
Reported by: Jeanette Burn, Barrister.
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