Mental Capacity Case

A Hospital Trust v CP

Henke J


This case concerned the obstetric treatment of CP, a 30 year old woman with a diagnosis of schizophrenia who was detained pursuant to s.3 MHA 1983 The acute Trust sought declarations and orders allowing it to provide a planned caesarean section to CP.  

The capacity evidence (as is commonly the case in such cases) was provided jointly by CP’s Responsible Clinician under the MHA (employed by the Mental Health Trust) and a clinician from the Acute Trust. It appears from the judgment that this issue was not the subject of challenge.

The best interests evidence appears to have been tested by the Official Solicitor (albeit there was by the conclusion of the hearing, no disagreement between the parties). In carrying out the best interests evaluation, the Court factored in the evidence of CP’s parents that she “is not good at handling pain and would find a natural delivery a very difficult experience. According to them, she becomes distressed when she has a headache,” together with their evidence that she  “would be unlikely to be able to cope with a normal labour of 12-16 hours duration” and that CP would find that traumatic.  The Court accepted that if CP were to have a vaginal delivery there was a real likelihood that medical intervention would be required in crisis and that CP would need to be restrained. This, the judge considered, would be likely to impact negatively on her mental health. Henke J factored in both CP’s previously expressed wish for a vaginal delivery and her views as expressed to the Court, that she wanted a caesarean section. The Court concluded that the proposed planned caesarean section was in CP’s best interests. 

Henke J also considered, separately, what form of anaesthetic should be used – spinal block or general anaesthetic, concluding on the facts before her a spinal block was in CP’s best interests.  


There are three aspects of this case that make it worthy of comment. 

The first is the fact that (increasingly rarely), the Trust’s obstetric plan was to move straight to a caesarean section. There were sound reasons for this, not least as set out above, that is what CP herself wanted (or at least that was the case by the time the matter was before the court). However, it is more common to see care plans that provide for vaginal delivery to be tried first, with authority to provide a caesarean section as a last resort. 

The second is that, reflecting the evidence before the court, there was a rather clearer recognition in the judgment than in some others that vaginal delivery “has the best clinical outcome for a medically low risk of primigravida. Recovery time is quicker than after a caesarean, there is no uterine or abdominal scar, there are less use of lines and thus less likelihood of wounds and infections” (paragraph 59). 

The third aspect is the decision by Henke J not to join CP’s parents as parties to the application. Henke J considered COPR 2017 9.13(2) which provides: “The Court may order a person to be joined as a party if it considers that it is desirable to do so for the purpose of dealing with the application.”  At paragraph 22, Henke J observed that “[d]esirability in this context means that their joinder would enable the court to better deal with the substantive application.”  In circumstances where the parents themselves stated that they simply wanted to observe the proceedings, where their views (in particular about CP’s inability to deal with pain), had been taken on board by the Trust witnesses and reflected in the Trust’s evidence and decision making, and where the parents agreed with the application,  had not filed any witness evidence, or sought to cross examine any of the witnesses, Henke J held that joinder would not enable the court to better deal with the substantive application. Part of the Henke J’s reasoning for not joining the parents also included (i) that CP herself did not want them joined as parties, and (ii) the fractured nature of the relationship between CP and her parents. We can quite see why these factors were in Henke J’s mind, and it is clear that she did not fall into error and consider the question of joinder to be a best interests decision as opposed to a case management decision.  The views of P have been taken into account in deciding whether to remove a person as a party (see London Borough of Southwark v P & Ors [2021] EWCOP 46 at paragraph 42) this is the first reported case we are aware of where they have been taken into account in deciding not to join someone.