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Guidance for CoP cases involving pregnant women who may lack mental capacity

Keehan J’s guidance given in NHS Trust v FG

In NHS Trust & Others v FG [2014] EWCOP 30 Mr Justice Keehan has provided 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.

Keehan J makes it clear that the guidance should not apply to every pregnant woman with a diagnosed mental health illness but applies to those cases where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care resulting from a diagnosed psychiatric illness, falls within one of the following categories of cases:

Category 1 - the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of COP Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the MCA or MHA; or

Category 2 - there is a real risk that the patient (P) will be subject to more than transient forcible restraint; or

Category 3 -  there is a serious dispute as to what obstetric care is in P's best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under s.4(7) of the MCA; or

Category 4 – there is a real risk that P will suffer a deprivation of her liberty which, absent a Court order which has the effect of authorising it, would otherwise be unlawful (i.e. not authorised under s4B of or Schedule A1 to the MCA).

The guidance appears as an annex to the judgment which can be found here.