Judge: Katie Gollop QC, sitting as a Deputy High Court Judge
Citation:  EWCOP 58
What (if any) threshold needs to be satisfied before the Court of Protection can exercise its (relatively) newly discovered ‘contingency’ jurisdiction? This important question was before Katie Gollop QC, sitting as a Deputy High Court judge, in this case. The question arose in the question of birth planning for a woman, SR, with a number of mental health difficulties. At the point that the application came before the court, she had capacity to make decisions about her birth arrangements and (perhaps unusually in these case) there was agreement between her and the professionals involved that the right method of delivery was by way of caesarean section. There was, however, a concern that she might lose capacity on or before the point she was to come to hospital for a surgical delivery.
The application came before the court on an urgent basis, which led Katie Gollop QC to add her voice to the consistent judicial chorus of concern as to timing. As she noted:
The matter being before the court, Katie Gollop QC was concerned to understand what the correct test was in law for making an anticipatory declaration or order. She was not in a position, she considered, to determine whether a threshold test was necessary nor, should it, be what the test was. Counsel for the Trust was unable to identify any authority that would assist, and the Official Solicitor was not involved (presumably because SR was considered to have litigation capacity), such that no submissions were received from that corner. However, Katie Gollop QC ventured some observations, as follows:
Applying this approach, Katie Gollop QC found that on the facts of the case there was a real risk that SR would lose capacity to make decisions about her labour and birth arrangements. She also found that it was necessary, justified and proportionate to make declarations which permit a caesarean section and restraint, and that SR’s circumstances were exceptional. The decision in relation to the caesarean section itself was clear, not least because of SR’s own (currently capacitous) wishes; the issue of restraint was more nuanced, but, ultimately, on the facts of the case, it was justified.
As a postscript, following judgment, the court was informed that despite some panic attacks during the process, SR’s caesarean section delivery went ahead under a spinal anaesthetic, as planned on the morning of 25 October 2021. Mother and baby were both well.
Although the observations about whether – and if so – what test to apply in contingency planning cases were identified as obiter, they were undoubtedly more than just passing musings. A “real risk” of loss of capacity must, I would suggest, strike the right balance for the reasons identified, in a curious world in which the Court of Protection is being invited to wade into decision-making about a person who currently has capacity in the relevant domains.
Two further points arise for comment. The first was expressly – and importantly – identified by Katie Gollop QC, and relates to communication and information sharing between healthcare professionals. As she identified at paragraph 25: “[a] pregnant woman who is under the care of psychiatric services, whether as an in-patient or in the community needs, and is entitled to, joined up care.” Helpfully, and no doubt alive as a practitioner to the misunderstandings that sometimes arise here, she then read into the judgment the relevant extract from the GMC’s 2018 guidance Confidentiality: good practice in handling patient information:
“Sharing information for direct care
Appropriate information sharing is an essential part of the provision of safe and effective care. Patients may be put at risk if those who provide their care do not have access to relevant, accurate and up-to-date information about them.9 Multidisciplinary and multi-agency teamwork is also placing increasing emphasis on integrated care and partnership working, and information sharing is central to this, but information must be shared within the framework provided by law and ethics.”
The second point arises out of the unusual fact-pattern of this case (unusual in the sense that ‘non-dispute’ cases in this context do not often come before the courts). This was a situation where there was alignment between the wishes of SR and the advice of the teams caring for her. Why, then, was a court application required? On one view, and with sufficiently robust advance planning, it might be thought that SR could have (in effect) bound herself to accept the interventions that she might require to give effect to her will, even if her preferences closer to the time were in conflict with this. This raises ethical questions as well as legal ones (see, here, this work from the Mental Health and Justice project). It is unclear, but likely, that it was the prospect of having to use restraint to bring about SR’s safe transfer to and undertaking of any caesarean section, that triggered the application to court. If so, it is perhaps of some interest no-one seems to have thought that SR could in effect give advance consent to any restraint to which she might be subject. This is particularly so given that the Government has said in the context of the White Paper on Mental Health Act reform that it thinks that the law already provides that it is possible to give advance consent to admission to psychiatric hospital so as to circumvent the need to consider the use of either the MHA 1983 or DOLS if at the point of admission the person is to be confined and lacks capacity to consent. It will be interesting to see whether this position is rolled forward into the draft Code of Practice to the MCA (including the LPS) when it finally makes its way out for consultation.
 See Reforming the Mental Health Act (publishing.service.gov.uk) at page 64. The Independent Review of the MHA 1983 had considered whether or not to introduce such an idea, but could not agree.