Mental Capacity Case

East Lancashire Hospitals NHS Trust v GH

MacDonald J


In this case MacDonald J was concerned with an evolving emergency – an application made in the case of GH, a 26 year old woman who suffered from anxiety, depression and acute agoraphobia and who had gone into labour at home nearly 72 hours earlier but who had thereafter suffered an obstructed labour. Within this context, it became apparent that GH required urgent in-patient obstetric treatment and a possible emergency caesarean section. GH was, however, refusing to agree to that course of action.  An urgent application was made, the hearing starting at 22:00.  The Official Solicitor, herself, acted as GH's litigation friend, under her (relatively new) out of hours scheme, and MacDonald J was at pains to express his gratitude to her for testing the evidence of the Trust by way of cross-examination and making, by way of closing submissions, a considered recommendation to the court regarding GH's best interests.

MacDonald J identified at the outset of his judgment that:

As Mr Wenban-Smith fairly acknowledged in his opening, in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor) [2014] EWCOP 30 Keehan J made clear the heavy burden on Trusts to engage in early and thorough planning in cases of this nature in order to prevent the need for urgent applications to the out of hours judge. However, I accept Mr Wenban-Smith's submission that this case is distinguished by the fact that up until late yesterday afternoon GH was assessed to have capacity with respect to decisions concerning the management of her pregnancy and birth and indeed had agreed to admission to hospital in the event that admission was required during the course of her labour. It was only during the latter part of the day yesterday that it became clear that GH's anxiety and agoraphobia had become the dominant feature in her decision making and that a subsequent capacity assessment revealed that she lacked capacity to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. Within this context, and as the Official Solicitor pointed out, there were options that might have been considered in order to endeavour to avoid the need for an urgent hearing following that assessment, I was satisfied that this case met the criteria for the urgent out of hours service. I make clear however, that nothing said in this judgment should detract from what should be the ordinary approach in cases of this nature as set out by Keehan J in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor).

In his judgment, given after the event (having indicated his decision at the end of the out of hours hearing), MacDonald J was clear that GH's:

  1. 30. […] GH's current agoraphobia and anxiety is preventing her from using or weighing information in deciding whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section.
  1. Despite clearly and carefully presented information that unless she is now admitted to hospital both her and her baby are at increasing risk of serious injury or even death, GH has chosen, without acknowledging and considering the reality of those risks, to stay in what she considers her "safe space", which she considers will allow her to give birth in a manner safe for both herself and her unborn child. Within this context, this is not a case in which GH has acknowledged the risk of serious injury or death, weighed that risk and then rejected that risk it in favour of an unwise course of action but rather a case in which GH simply does not acknowledge the risk of serious injury or death or accept that the risk of serious injury or death is relevant to her as long as she remains in her "safe space". I am satisfied that this demonstrates that GH's agoraphobia and anxiety has overwhelmed her ability to use and weigh the information required to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section. Within this context, I am further satisfied GH's inability to use and weight information is clearly the result of an impairment of, or a disturbance in the functioning of, GH's mind or brain.
  1. I am also satisfied that in her current circumstances there is no evidence before the court that GH is likely to regain capacity to make the decision regarding admission to hospital before it becomes necessary for her safety and the safety of her unborn child for that admission to take place.
As regards her best interests, MacDonald J  held that it was in GH's best interests to be conveyed from her home to hospital by ambulance, with use of reasonable force if necessary, and for the medical and midwifery practitioners attending GH to carry out such treatment as may in their opinion be necessary for the management of GH's pregnancy and delivery, as outlined in the Obstetric Management Plan.   In this, he gave
  1. […] significant weight to the fact that, at a time when all involved accept that GH had capacity, she had indicated that whilst she wished for a home birth, she agreed to be admitted to hospital should that be required. I am satisfied that this is cogent evidence regarding her wishes and feelings at a time when she had capacity with respect to the decision in issue. Further, I have also weighed in the balance in assessing GH's best interests the fact that she was clearly looking forward to the birth of the child and wished for the birth to go smoothly and safely. If GH had retained capacity with respect to the decision in issue, I am satisfied that it is likely she would have remained in agreement with being admitted to hospital should that admission have become necessary during the course of her labour, which it now has.
He noted the risks attendant on admission to hospital, particular in circumstances where one of the options contemplated is a caesarean section under a general anaesthetic. A caesarean section carries with it the risks associated with a general anaesthetic and an increased risk of bleeding.  As he observed, "[t]he transportation of GH to hospital will also inevitably increase her levels of anxiety at a time when her body is already stressed by her pregnancy and obstructed labour, particularly if it is necessary to use reasonable force to facilitate the transfer" (paragraph 35).  Those risks were, however, outweighed by the risks to GH (and to the health of her unborn baby) by a home birth in her particular circumstances.

MacDonald J sought to consider the position from GH's point of view:

  1. […]In this regard, I am once again assisted by fact of GH's consent to admission when she had capacity to consent to that course and before she was overborne by her agoraphobia and anxiety. As I have stated, for the reasons I have given I am satisfied that this would remain her position if she had capacity in light of the fact this this view was taken by her as recently as a few days ago. I am further satisfied that GH would also take counsel of relatives and family who seek for her to go to hospital and would likely place weight on that counsel, particularly in circumstances where it is plain that GH was desirous of a safe birth for her second child. Within this context, I have of course also borne in mind that, having heard the evidence in this case, the considered recommendation of the Official Solicitor, as litigation friend for GH, that it is in GH's best interests now to be admitted to hospital for obstetric and postnatal care.
The order was therefore made.  MacDonald J noted that,
  1. […] it is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo. It is a graver step still compel, possibly by means of the use of sedation and reasonable force if further gentle persuasion fails, the removal of a person from their home to ensure their attendance at hospital for such medical treatment. Parliament has conferred upon the court jurisdiction to make a declaration of such gravity only where it is satisfied that the patient lacks the capacity to decide whether to undergo the treatment in question and where it is satisfied that such treatment is in that patient's best interests.
  1. In this case I am satisfied that the Trust has discharged the heavy burden resting upon it in demonstrating that GH lacks capacity to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section and that the course of action proposed by the Trust is in GH's best interests. Within this context, I make the order in the terms appended to this judgment.
In light of the foregoing, it may come as a (happy) surprise to discover the postscript to the judgment that:
  1. Ahead of this judgment being formally handed down, the court was informed that GH had given birth to a healthy baby boy. In the event, following the out of hours hearing and the decision of the court, GH's labour began to progress quickly and she delivered her son at home before it was possible to execute the arrangements authorised by the court regarding her transport to hospital for obstetric and postnatal treatment.

Cases concerning birth arrangements are always – and rightly – ones which cause concern, both to the courts, and to practitioners.  In this case, it is striking the extent to which the court founded itself on what itself understood to be evidence that the woman in question in fact would have wished to have been delivered safely of their baby, even if the means now being proposed were ones that they were objecting to.  Their will, in other words, was being prioritised over their preferences.  This case is a crucial reminder of the importance in this setting (above almost all others) of ensuring that proper steps are taken by way of advance care planning to ensure the recording of the evidence required to determine that will.

GH's case is also a reminder of how quickly the Court of Protection can be summoned to help where required (and also of the importance of the fact that the Official Solicitor is now able to offer an out of hours service so as to ensure that the person in question is represented).   As MacDonald J reminded us, the power to go out of hours should only be used as a last resort, especially in circumstances where contingency planning is possible.  But it is very important that it is there.  The decision is also, thankfully, another reminder of the fact that planning for the worst is quite often the best guarantor that the best will in fact occur.