NHS Trust & Ors v FG
In this judgment, Keehan J has given important and detailed guidance as to when and how applications should made where a treating Trust is concerned that pregnant woman lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and post natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness. The guidance is reproduced here; the summary and comment here addresses some of the details of the judgment itself.
The actual application itself came about in a roundabout fashion, the case originally arising in the context of an application by a local authority not to disclose a care plan providing for the removal of a child from a woman detained under the provisions of the MHA 1983, during the course of which it became clear that applications from the treating NHS Trusts (both that providing obstetric care and psychiatric care) for relief from the Court of Protection would be required.
The first part of Keehan J's judgment therefore concerned a careful analysis where the woman's best interests of lay, a distinguishing feature being that – very unusually – Keehan J granted a 'very exceptional' order 'at the extremity of what is permissible under the European Convention' that FG not be notified of the proceedings, such an order only being justified and required if the interests of the patient and/or the child demand the same: see Re D (Unborn Baby)  2 FLR 313. (FG having safely been delivered of her baby, Keehan J then held that she should be informed of the proceedings).
Keehan J then moved to accept an invitation by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment. This invitation was extended out of concern that:
"73. [….] in a number of recent cases there has not been a full appreciation or understanding of:
a) the planning to be undertaken in such cases;
b) the procedures to be followed;
c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and
d) the evidence required to support an application to the court."
The guidance, which formed an annex to the judgment, is reproduced here, but should be read with paragraphs 81-130 of the judgment in which Keehan J gave a number of observations underpinning it.
Importantly, Keehan J noted that it should not be read as applying to every pregnant woman with a diagnosed mental health illness as "[n]o doubt in the vast majority of such cases it will not be necessary to make an application to the Court of Protection or to the Family Division of the High Court. I should emphasis[e] that P is assumed to have capacity in accordance with the provisions of s1(2) MCA, unless it is established to the contrary, even if she is detained under the provisions of the Mental Health Act 1983 ('MHA')" (paragraph 82).
At paragraph 83, Keehan J noted that the purpose of the Guidance was to i) to prevent the need for urgent applications to be made to the out of hours judge; and ii) to ensure trusts do not rely inappropriately on the provisions of s5 of the MCA. Perhaps unsurprisingly, he noted at paragraph 84 that he did not "consider a failure to plan appropriately and/or a failure to identify a case where an application to the court may be required constitutes a genuine medical emergency."
Having outlined the circumstances under which obstetric care may be provided to a psychiatric patient under s.63 MHA 1983, Keehan J noted that, in the majority of cases, such care will in fact be given in reliance upon s.5 MCA 2005. As he drily noted, however, "[t]he potential use of restraint complicates matters" (paragraph 92)… and "[t]he distinction between actions which amount to restraint only, and those which become a deprivation of liberty might be difficult, but is of critical legal significance because s.4A(1) prevents clinicians performing acts which amount to a deprivation of liberty as part of the care and treatment under s.5" (paragraph 93).
In this context, and almost in passing (but perhaps unsurprisingly), Keehan J gave the first judicial confirmation that the 'acid test' set down by Lady Hale in P v Cheshire West and othrs  UKSC 19 applies in the acute setting. It appears that by 'acute' here, Keehan J intended not just to mean the acute psychiatric setting because his observations were expressly directed to circumstances outside such a setting. Applying the acid test, Keehan J observed at paragraph 96 that:
"It will commonly be the case that when at the acute hospital P:
i) will have obstetric and midwifery staff constantly present throughout her labour and delivery;
ii) will be under the continuous control of obstetric and midwifery staff who, because she lacks capacity to make decisions about her medical case, will take decisions on her behalf in her best interests;
iii) will often not be permitted to leave the delivery suite.
Those factors may, when applying the acid test, lead to a conclusion that P is or will suffer a deprivation of her liberty when at the acute hospital. If the Trusts are to deprive P of her liberty, they have a duty not to do so unlawfully: s6 HRA 1998.
Keehan J continued:
"97. The Trusts must, therefore, plan how P is to receive obstetric care in sufficient detail to identify whether there is potential for a deprivation of liberty to arise. When trusts identify there is a real risk that P will suffer an additional deprivation of her residual liberty during transfer to and from the acute hospital and/or when present at the acute hospital, the Trusts must take steps to ensure the deprivation of liberty is authorised in accordance with the law. I use the term 'real risk' to mean that "judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty": AM v South London v Maudsley NHS Foundation and Anthr  UKUT 365 (AAC) per Charles J at para 59.
98. Where the Trusts identify there is a real risk that P will suffer a deprivation of liberty in these circumstances it is for them to decide whether the same is achieved by a standard authorisation under schedule A1 of the MCA, by an application to the court or under another lawful jurisdiction.
99. I do not propose to analyse further what measures or restraint used or proposed to be used to facilitate P's obstetric care would amount to a deprivation of liberty. I limit myself to four observations:
i) a mental health patient enjoys all of the fundamental rights and freedoms guaranteed under the ECHR save to the extent that her liberty is restricted pursuant to the MHA;
ii) restraint or measures to facilitate P's obstetric care which amount to a deprivation of liberty would interfere with her rights under Articles 3, 5 and 8 of the ECHR unless authorised in accordance with the law;
iii) total restraint for very short periods may amount to a deprivation of liberty; ZH v Commissioner of the Police for the Metropolis  1 WLR 3021; and
iv) P's lack of objection to obstetric care or any restraint used to facilitate it is irrelevant in determining whether the actions amount to a deprivation of liberty: P v Cheshire West and Othrs (above), para 50."
In his analysis of how a deprivation of liberty in such circumstances can be authorised, Keehan J noted – importantly – that
ii) if the need for the deprivation of liberty in relation to the proposed obstetric care was foreseeable but the Trusts omit to seek a standard authorisation, the use of an urgent authorisation may be unlawful: see paragraphs 6.2 and 6.3 of Deprivation of Liberty Safeguards Code of Practice which provides that urgent authorisations should normally only be used in response to sudden unforeseen events and they should not be used where there is no expectation that a standard authorisation will be required; and
iii) the mere fact that a deprivation of liberty could be authorised under Schedule A1 does not absolve the Trusts from making an application to the court where the facts of the individual case would otherwise merit the same.
The guidance identified four categories of case where an application needed to be made to the Court; in the judgment, Keehan J explained why this was so; for ease of reference, we therefore insert the relevant category at each point before discussing the rationale given.
Category 1 – the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of COP Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the MCA or MHA
Keehan J confirmed that neither delivery of a baby per se (paragraph 107) or an uncomplicated planned caesarean section (paragraph 110) would amount to serious medical treatment ('SMT') within the meaning of PD9E. However,
"111. A proposed caesarean section may, however, become a case of SMT where:
a) they are factors in P's medical or obstetric history which means she faces a higher risk of complications (PD9E paras 3 and 4); or
b) because of P's psychiatric condition, the intervention proposed may cause a deterioration in her psychiatric condition which causes her not to be compliant and a degree of force to restrain P is required to carry out the intervention (PD9E para 6 … c)).
112. Whether the proposed intervention amounts to SMT is a decision to be made in each case following consideration of the provisions of PD9E, an assessment of the risks involved and the potential consequences for the individual patient."
Further, and importantly:
"113. A decision to compel a mother, who would otherwise wish to have as natural a birth as possible, to undergo treatment which amounts to SMT is a very serious interference with her human rights as protected by the ECHR. In my judgment such decisions in the case of a P should be brought before the court for permission to undertake the same. Accordingly in this category of case an application should be made to the court irrespective of whether the treatment proposed could be provided pursuant to the provisions of s5 MCA or as medical treatment under s63 MHA." (emphasis added)
Category 2 – there is a real risk that P will be subject to more than transient forcible restraint
Keehan J confirmed that where it is not possible to predict whether active restraint will be required, the case will not fall within paragraph 6 (c) of PD9E: "to come within that provision it is necessary for there to be a greater degree of confidence that restraint will be required" (paragraph 115).
"117. The use of more than transient forcible restraint of a mother during labour is a grave interference with her rights under Articles 3,5 and 8 of the ECHR. In my judgment it is so grave that such categories of cases should be the subject of an application to the court.
118. The assessment of the extent of the potential interference requires a consideration of:
i) quantifying the risk of the interference being required at all; and
ii) assessing the extent and gravity of the potential interference if it were to be undertaken.
119. The assessment of a 'real risk' requires an intense focus on P's present and individual circumstances and on her previous behaviour in the context of the nature of her illness. Thus in cases where there is no evidence of P having been non compliant with her care or having been aggressive to medical staff or others, either in the past or currently, it is unlikely such a case would fall within this category."
Keehan J made clear that he "included this category in the Guidance with the intention of alerting Trusts of the need to make these assessments prior to labour and in a timely fashion to allow for appropriate planning and, if necessary, to make an application to the court." However, he indicated that "[i]t is not intended that applications to the court should become routine or the usual course taken in the majority of cases" (paragraph 120).
Category 3 – there is a serious dispute as to what obstetric care is in P's best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under s.4(7) of the MCA
Keehan J founded his rationale for including this category of case upon the observation of Peter Jackson J in London Borough of Hillingdon v Neary  4 All ER 584 that "significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary." He confirmed, however that "not very dispute over P's obstetric care will fall within category 3. There must be a serious dispute which must have real substance, for instance, based on P's religious beliefs" (paragraph 123).
Category 4 – there is a real risk that P will suffer a deprivation of her liberty which, absent a Court order which has the effect of authorising it, would otherwise be unlawful (i.e. not authorised under s4B of or Schedule A1 to the MCA).
Explaining the basis for including this category of case, Keehan J observed that:
"126. A deprivation of P's liberty which is not authorised in accordance with the law will amount to a breach of her rights under Article 5 of the ECHR. As public authorities, Acute and Mental Health Trusts have a duty under s.6 of the Human Rights Act 1998 not to act in a way that is incompatible with P's Convention rights. When planning P's care in cases of this nature, Trusts therefore have a duty to consider whether the interventions they propose or the steps necessary to facilitate them will, or could, amount to a deprivation of P's liberty and, if so, how that should be authorised.
127. Logically, it must follow that if Trusts consider that P's liberty may be deprived to facilitate her obstetric care, but the Trust is unable to deprive her of her liberty under Schedule A1, and no other legal justification for that deprivation of liberty is available, they have a duty to seek the authorisation of P's deprivation of liberty from the Court.
128. Although the Court will not be able to make a welfare order depriving P of her liberty under s 16(2)(a) of the MCA, it will be able to exercise the inherent jurisdiction of the High Court to make such an order provided that it complies with Article 5: see A NHS Trust v A  2 WLR 607, per Baker J, para 89-96."
Unlike the guidance given by Baker J in W v M upon when applications relating to those in Minimally Conscious States, the guidance given by Keehan J does not – on its face – carry the imprimatur of the President. However, the guidance undoubtedly carries very significant weight given its clarity and detail. On its face, it suggests that more applications are likely to be made than previously, although Keehan J was at pains to identify the limits to the four categories that he identified as requiring such applications.
It may well also be the case that the guidance feeds through into a revision of Practice Direction 9E in due course, both in terms of the circumstances under which applications should be brought and in terms of the procedure that should be adopted (we note, for instance, that the guidance appears to be predicated upon the Official Solicitor being notified after the application has been issued rather than, as per PD9E, before the application is issued (see paragraph 8 of PD9E cf paragraph 20(ii) of the Guidance)).
Keehan J's observations as to the application of the 'acid test' are also of note as they confirm what – on their face – appeared clearly to be the case, namely that they apply with equal force in the hospital setting. The level of continuous involvement of the clinical staff in the delivery suite is likely to be similar to be the level of such involvement of (different) staff in – for instance – the intensive care setting. It is also of note that he picked up on the observation of the Court of Appeal in ZH that a deprivation of liberty can arise in a very short space of time where the restraint is total.