Judge: Theis J
Citation:  EWCOP 35
This case concerned the obstetric care and delivery of X, a young woman who had a number of different mental health diagnosis including bipolar disorder, schizoaffective disorder and personality disorder. She had been in a psychiatric hospital for 6 weeks at an early stage in her pregnancy.
X attended Guys and St Thomas’ Hospital where the doctors became concerned that there was a high risk of still birth. They concluded that the safest option was to deliver by c-section. X wanted the baby to be born alive but did not consent to a c-section – she had strong views about wanting a ‘natural birth’. She was assessed as lacking capacity to make decisions about her obstetric care and the delivery of her baby.
The matter came before the Court of Protection as an out of hours’ telephone application in the early hours of the morning, at which hearing X represented herself. The Court was critical in the judgment of both the fact that the application was not brought earlier in the day so that the hearing could take place in Court hours, and of the fact that the Official Solicitor was unable to represent X at the out of hours hearing as the office does not offer an out of hours service.
The judge adjourned the application to the following morning, by which time the Official Solicitor was available to represent X as her litigation friend.
By the time of that adjourned hearing, X had agreed to have labour induced as soon as possible. In fact, X had her baby the following day without the need for a c-section.
The judge dealt with the issue of capacity in a somewhat striking fashion. The Official Solicitor did not consider that there was sufficient evidence before the court to rebut the presumption that X had capacity to make decisions about her obstetric care and the delivery of her baby. Accordingly, the Official Solicitor submitted that the court should not make any order, but that in the event X lost capacity in the future, the matter could be restored urgently. The high point of the Trust’s case on capacity was that there was sufficient evidence to make an interim declaration on capacity pursuant to s.48 MCA 2005 (namely that there was reason to believe X lacked capacity).
The court agreed with the Trust that it was appropriate to make an interim declaration that X lacked capacity to make decisions about her obstetric care and the delivery of her baby and authorised the treatment plan on this basis.
It is difficult to see the justification for relying on s.48 MCA 2005 in the way that Theis J did in this case. At the point that the court is being asked to authorise serious medical treatment against a person’s wishes, the court is being asked to make a final order. If the evidence was not sufficient at this final hearing, to rebut the presumption that X had the capacity to make the decisions herself applying the test on capacity set down in s.15 MCA 2005, then we suggest that the court should have acceded to the Official Solicitor’s submission to make no order.
See by contrast the comments Francis J made in United Lincolnshire Hospital NHS Trust v CD  EWCOP 24 when he agreed with the Official Solicitor that to authorise the treatment pursuant to section 4B of the MCA (section 4B authorises the deprivation of liberty “while a decision as respect any relevant issue is sought from the court”) would not be appropriate as it would involve adjourning the s16 order until after the birth, “which was entirely artificial since it is in relation to treatment during labour that the issue arises” (emphasis in original).
Separately, Theis J was – we suggest – entirely correct to flag the problem (which is at root a resourcing problem) that the Official Solicitor is unable to offer an out of hours service. As Theis J noted, “[w]hy should the timing of an application have an impact on X’s ability to be properly represented, which she would have been if the application had been made a few hours earlier?” We will see whether the Official Solicitor is, indeed, able “urgently [to] review this position and consider putting in place arrangements that will ensure appropriate representation out of normal court hours for those individuals who are the subject of urgent applications that potentially involve serious medical treatment.”