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United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24 (Francis J)

Concerning the medical treatment of CD, a 27-year-old woman that is 35 weeks preganant, currently detained pursuant to section 3 of the Mental Health Act 1983.

CD was a 27 year old woman, currently detained under s3 of the Mental Health Act 1983.  She lacked capacity to conduct proceedings and so was represented by the Official Solicitor.  At the time of the hearing she was 35 weeks pregnant and judged to have capacity to make decisions relating to the birth of her baby and any treatments or procedures related to the birth, which represented a change since proceedings were issued (at which time she was incapacitous).  However, the treating team agreed there was a substantial risk she could become incapacitous in relation to those decisions at a critical moment in her labour, and there would almost certainly be insufficient time to make a renewed application to the court.  It was felt that her presentation was variable.  The NHS Trust therefore sought what they described as an "anticipatory and contingent declaration" enabling them to take decisions in accordance with a prescribed care plan in the event she lacked capacity once her membranes had ruptured.

Francis J confirmed that the 5 options available were:

1. To conclude the proceedings as CD was capacitous;

2. To adjourn the proceedings for a short period to enable the NHS Trust to restore their application if CD deteriorated;

3. An interim order enabling implementation of the care plan pursuant to s4B of the MCA

4. A final order pursuant to s15(1)(c) that, in the event CD is later assessed as lacking the capacity to make decisions about the birth, the care plan could be implemented lawfully;

5. An order pursuant to the inherent jurisdiction.

Francis J rejected option 1 (concluding the proceedings) on the basis that any loss of capacity was likely to be in an urgent situation where the health of the foetus/child would then be at risk, and the loss of the child would have severe implications for CD's mental health.  He likewise rejected option 2 as it risked there being insufficient time for an emergency order to be obtained.  He held that an interim order was not an appropriate route, as the court was fully seized of the issues and able to take a decision now, so the use of s4B would be a device and it would be artificial to adjourn the s16 order.

When considering option 4, Francis J acknowledged that s16(1) was not fulfilled, i.e. CD had capacity.  However, he found that "in exceptional circumstances, the court has the power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to s15(1)(c)": this was on the basis that s15(1)(c) refers to the court making declarations as to "the lawfulness … of any act done, or yet to be done" (emphasis added).  He therefore made the order on that basis, although noted that if CD's circumstances had not been covered by the MCA 2005 he would have had no hesitation in making an order under the inherent jurisdiction.

He expressed his surprise that there were apparently no reported decisions arising from similar situations, but that an unreported decision of McFarlane J (as he was in 2009 when the decision was made) is referenced in the 2019 edition of the Court of Protection Practice.

Summary by Julia Belyavin, barrister, St John's Chambers, Bristol.

You can read the full judgment of United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24 on BAILII