University Hospitals Birmingham NHS Foundation Trust v EN

In a cri de coeur from McKendrick J (which was heard in 2025, but only recently reported), practitioners are reminded that those making urgent medical treatment applications must reflect on the practical realities of the court and Official Solicitor to deal with those applications on short notice. In University Hospitals Birmingham NHS Foundation Trust v EN [2025] EWCOP 59 (T3),  the applicant had made an application for orders to compulsorily treat ‘EN’ by way of a caesarean section under a general anaesthetic and with the use of restraint if necessary. At the time of judgment, EN was detained under s.3 MHA with a diagnosis of schizophrenia, and was 40 weeks + 3 days pregnant. The child was her third child, and her previous child had required delivery by emergency caesarean section. The background to the application is set out at [7]: ‘While she was initially compliant with her care, her mental health and her presentation have deteriorated. Essentially the background is that she has been refusing to co-operate with staff, is often dysregulated in mood and behaviour and there is significant concern that she will not co-operate with the necessary obstetric care required to be delivered of her baby. She could give birth imminently.’ EN was expressing wishes to both hospital staff and her representative via the Official Solicitor that she wished to have a vaginal delivery, and the matter was listed for a hearing the day after it was filed, hearing evidence from EN’s consultant obstetrician and gynaecologist. After identifying that further evidence was required from an anaesthetist on the risk of a general anaesthetic and obtaining the evidence, neither the Official Solicitor nor the court appeared to have great difficulty in agreeing that EN lacked capacity and the Trust’s plan to proceed with a caesarean section was in her best interests.

We highlight this case in the Practice and Procedure section due to McKendrick J’s setting out his concerns about the manner in which the application was brought:

4. I am giving this judgment ex tempore under challenging circumstances. The application was purportedly issued around 10 past 4 yesterday afternoon. I say purportedly as it was issued by way of an email with 12 separate attachments, each of which was password protected. I was supposed to be dealing with other matters today but it was the applicant trust’s position that the matter had to be dealt with today…

60. …I have considered this matter as carefully as I possibly can in the rushed, unsatisfactory circumstances that have led up to this hearing. I repeat, there has been no question of the Official Solicitor or this court acting as some form of rubber stamp. There has been questioning, and testing of the evidence. For those reasons, I will make the orders…
61. I will add a postscript to the judgment as follows. The circumstances of how this application was brought to court are unacceptable. It was clear to the applicant trust that Ms EN was a woman with psychiatric challenges. It was clear from 29 June 2025 that she was detained pursuant to Section 3 of the Mental Health Act. As I understand the chronology, she was assessed on Monday of this week and whilst in the morning it was considered she was engaging and had capacity, it was clear by the middle of Monday that she was not. The application was issued at 10 past 4 yesterday afternoon, seeking a four-hour hearing the next day.
62. I have received an email from a highly experienced solicitor explaining the delay. It has been approved by the applicant trust’s team. They say on the various occasions when the obstetricians and Ms EN met they felt Ms EN was able to understand and agree to the birth plan as discussed. They accept she was seen as high risk because of her mental health and a plan was drawn up at 34 weeks gestation. They say that when she was seen in clinic on 1 July she was still capable of making decisions and an MDT meeting took place on 3 July and it considered the question of fluctuating capacity. Legal advice was sought by the obstetrician from the legal department of the trust on 3 July 2025 and was informed there was a substantial risk of a patient becoming so unwell as to lose capacity which means that the treatment might have to be forced on her. The Court of Protection was in a position to make a declaration.
63. It then appears that there was discussion between that Trust and the psychiatric Trust. There was another MDT meeting on 7 July and it was felt that she lacked capacity to make the decisions about her care. As I say, on 8 July she seemed to accept induction of labour but again deteriorated quickly thereafter and I am told the obstetric team were not aware of the guidance set out by Keehan J in NHS Trust v FG and it was not appreciated, as it should have been last week, that an application to court was likely.
64. The reference to NHS Trust v FG is a reference to Keehan J’s decision called NHS Trust 1 v G Practice Note [2014] EWCOP 30. In an annex to that judgment, Mr Justice Keehan set out clearly what should happen in these types of cases. He emphasised in particular that early identification of an individual in respect to whom an application might have to be made is essential. He set out that late applications must be avoided absent genuine emergencies and set out the very undesirable consequences.
65. I have had to deal with matters at a pace this morning, but it seems to me on a summary analysis of what I have been told that this application should have been made easily last week because there was a risk that this vulnerable woman who is detained may have significant challenges. It does not seem to me that the aggressive, guarded, difficult behaviours blew out of nowhere yesterday. Indeed on the obstetric Trust’s own evidence, that was the position at the start of this week.
66. To compound matters, it is unacceptable that this very urgent application was sent into court by way of an email with 12 separate attachments, each of which were password protected. I do not understand why solicitors are sending into the court password protected documents. To further compound matters the application was sent to the wrong email address. This urgent application was sent to the wrong email address. This created unnecessary delay. It is further unacceptable that no bundle was sent to me until 23 minutes past 10 this morning.
67. This is not simply a judge venting spleen regarding procedures and rules. This is because the application I have been required to deal with this morning is of the utmost gravity for Ms EN. Whilst I am satisfied I have received the assistance and evidence necessary to make decisions on capacity and best interests, that may not be the case in every scenario. It was not acceptable at the outset of this hearing there was no proper evidence on anaesthesia. That further delayed determination of matters.
68. There may come a time when a mistake is made and grave harm or death befalls a patient before the Court of Protection, because of the unacceptable procedural steps that lead up to hearings.
69. It is also unacceptable that the matter I should have been dealing with today has had to be put off. Other litigants who need determination of their litigation now have to wait. I do not see that there are any good reasons for any of this.
70. The Official Solicitor has not sought an application for her costs. If she had made an application I would have granted a costs order against the Trust in full. In the exercise of my discretion, applying Court of Protection rule 19.5, I would not have accepted any resistance from the Trust that I should not depart from the general rule in personal welfare proceedings. I would have accepted, applying 19.5(1), that the conduct of the party has merited a cost order against the Trust in the full amount. I would have been prepared to have heard submissions as to whether that costs order should have been paid pursuant to the Civil Procedure Rules on an indemnity basis, applying the general principles of CPR 44.3.
71. However, I am not asked to make any costs order and therefore I simply make those obiter observations so that if other Trusts bring these urgent applications in respect of caesarean sections they understand the time has come that cost orders will have to be more routinely made to ensure applications are brought in a timely fashion to ensure that vulnerable women like Ms EN’s care is not jeopardised by late applications being brought to court.

Comment

McKendrick J’s points on the impacts of late applications on the court and other court users are clear and require no interpretation (though the query of why password-protected documents would be filed with the court is worthy of amplification). We would, however, note this case in concert with the next piece on making robust attempts to resolve healthcare disputes without the personal and financial costs inherent in having recourse to the Court of Protection. We consider that while in this case, it appears that the need for an application was well-established, there are many other healthcare disputes in which the approach of trying to work with the patient is a successful one and avoids unnecessary applications being made to court.