Judge: Francis J
Citation:  EWCOP 24
Francis J has grappled with a subject that has been perennially difficult for practitioners: what to do where a person currently has capacity to make a relevant decision but it is likely that they may lack it in due course. Can the Court of Protection be involved, or is it prevented from doing so on the basis that the person, at present, does not fall within its jurisdiction? As Francis J noted, it is surprising that there has been no reported decision upon this to date (although in a judgment alluded dating back to 2009, the current President, Sir Andrew McFarlane had done so).
The case arose in the context of a woman with schizophrenia, detained under the MHA 1983. She was 35 weeks’ pregnant, and question of the arrangements for her birth. As Francis J summarised it:
The difficult and, I am told, novel issue that arises in this case is that it is common ground among the treating clinicians that CD does not presently lack capacity to make decisions in respect of the birth and the treatment and necessary procedures in connection therewith. However, based on her history, her clinicians are agreed that there is a substantial risk that she may become incapacitous in relation to such decisions at a critical moment in her labour. CD also suffers from polyhydramnios (excess of amniotic fluid in the amniotic sac). At that point, defined as once either CD’s membranes have ruptured or CD’s waters have broken, the clinicians agree that there would almost certainly be insufficient time to make a renewed application to the court, even though I have agreed to make myself available by telephone throughout the day and night for this case so far as consistent with other professional obligations.
The Trust therefore asked for anticipatory and contingent declarations, allowing for interventions (including those amounting to a deprivation of liberty) to take place in the event that CD lacked the relevant decision-making capacity.
Francis J went through, in turn, each of the five possible ways in which the court could proceed, as identified by the Official Solicitor.
The first was to bring the proceedings to an end, on the basis that CD did not currently lack capacity to make decisions for herself. However,
The practical position, however, is that if (as those treating CD consider very likely) CD subsequently loses capacity to make decisions about her delivery, this is likely to be in an urgent situation where a renewed application would cause unacceptable delay with potentially catastrophic consequences as discussed above. In my judgement it would be dangerous and plainly wrong to do nothing. This court cannot and will not take what is regarded by all as an unacceptable risk. If, as has been summarised above, a medical emergency were to arise and if it were to be determined that CD has again lost capacity to make decisions about herself, the treating clinicians would find themselves in the invidious position of possibly carrying out invasive surgery and administering anaesthetic or other drugs without lawful authority.
The second was to adjourn the proceedings, but Francis J considered that this was possibly, if not probably, have the effect of leaving things too late and insufficient time for an emergency order to be obtained.
The third was to make an interim order pursuant to s.4B, which authorises the deprivation of liberty “while a decision as respect any relevant issue is sought from the court.” However, Francis J considered that it was not appropriate:
Whilst I agree with Mr Patel that all three conditions of subsection 4B could be said to be met in the circumstances of this case, the court is fully seized of the issues and I am in a position to make a decision now. I agree with the submission made by Mr Patel on behalf of the Official Solicitor that using section 4B to make an interim order would be a device to fit CD’s circumstances within section 4A/B. It would involve adjourning the s16 order until after the birth, which is entirely artificial since it is in relation to treatment during labour that the issue arise. (Emphasis in original).
The fourth was to make a final order. Francis J acknowledged that he was:
not currently empowered to make an order pursuant to section 16(2) because the principle enunciated in section 16(1), namely incapacity, is not yet made out. However, as I have already said, there is a substantial risk that if I fail to address the matter now I could put the welfare, and even the life, of CD at risk and would also put the life of her as yet undelivered baby at risk. As I have said, I am not prepared to take that risk. I am prepared to find that, in exceptional circumstances, the court has the power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to section 15(1)(c).
Francis J made clear – as was agreed before him – that he was doing so on the basis that:
For so long as CD retains capacity to make decisions about her obstetric care and the delivery of a baby, she will of course be allowed to do so, even if those decisions are considered to be unwise. If, however, her mental health deteriorates and she loses capacity I consider that it would be in the best interests to try for a normal vaginal delivery if possible and this is consistent with either CD’s expressed wish or best interests. The care plan drawn up by the applicant records the expectation that CD will comply with what is proposed but also includes fall back options, including for appropriate minimal restraint, should this not be the case. Restraint would potentially be used to transfer her to the maternity suite, insert a cannula (although only if medically required) or provide general anaesthetic in order to proceed to a caesarean section. A caesarean section would be very much a last resort.
In terms of the form of the order, and picking up on a discussion in the Court of Protection Practice 2019, which had identified that it was not entirely clear whether indications as to when lack of capacity would arise should be in the declaration itself, or in the accompanying judgment (cross-referenced to in the recital to the order), Francis J considered that any anticipatory order should be made in the declaration itself, rather than in an accompanying order:
It is the declarations and orders of the court which authorise the applicant to take the particular course of action, not the wording of the Judgment. Moreover, these cases are by definition going to be urgent and a hospital trust, or other person with the benefit of such an order, will not want to be trawling through what could be a long Judgment. I am not in any doubt that, if making such a declaration, it needs to be on the face of the court order.
Finally, Francis J considered the inherent jurisdiction. He considered it “obvious” that he should work within the MCA 2005 if it all possible. However, he observed:
were it necessary for me to say that the unusual circumstances of this case are not covered by that Act, I would have no hesitation in making an order pursuant to the inherent jurisdiction if faced with a situation where the choice is to make such an order or to risk life itself.
Alex having been involved in the unreported case before McFarlane J in 2009 noted by Francis J, and others on the team having had unreported cases involving similar issues, we can confirm that it is immensely helpful that we now have a reported decision in which the court has considered and determined the question of what to do in the situation where the person currently has capacity, but it is sufficiently foreseeable that they may lack capacity in due course that proper contingency planning should be undertaken.
Perhaps counter-intuitively, the difficulties that arose here do not exist outside the court arena, because the question is at any given time whether the relevant person carrying out the fact reasonably believes that the individual lacks capacity. It appeared, though, that the court might be (inadvertently) rendered unable by the wording of ss.15/16 MCA 2005 to play sensible part in ‘high end’ contingency planning of the nature in contemplation here. The flight-path through those jurisdictional hoops has now, helpfully, been made clear.
Turning to the perinatal setting more specifically, this case would appear to be a paradigm example of one in which advance care planning might have obviated the need to come to court at all. That might have required some careful consideration of (1) whether CD could consent to what would otherwise be a deprivation of her liberty if she did, indeed, need to be confined in her own interests during the course of her birth; and (2) the circumstances under which one could seek to refuse a Caesarean section by way of advance decision to refuse medical treatment (a question which may be as much ethically demanding as it is legally demanding).
 Katie having been involved in the case, she has not contributed to this summary.