The Shrewsbury and Telford Hospital NHS Trust v T and Midlands Partnership NHS Foundation Trust
This judgment (which Lieven J notes was prepared approximately nine months after the application was determined) related to an application by the applicant Trust on 1 August 2022 for an anticipatory declaration in respect of the obstetric care for ‘T.’ T was 39 weeks pregnant, and had a diagnosis of Persistent Delusion Disorder. She had been detained under s.2 Mental Health Act 1983 approximately two and a half months prior to the application, and was recorded as not being compliant with medication. T was described as having “something of a chaotic lifestyle” (paragraph 4), but on 14 July 2022, had been assessed by her treating obstetrician as having capacity to make decisions about her obstetric care.
However, “[i]n late July, T called her midwife and sounded very distressed, angry and delusional” (paragraph 6). T’s obstetrician reconsidered her view on capacity, and felt that T had fluctuating capacity, and specifically, “may lose capacity due to the stress and pain of labour and the effects of drugs, which may cause her to have delusional thoughts which mean she cannot discuss her delivery options and obstetric care at the time. T has been known to focus on her delusional thoughts to the extent that it is not possible to discuss her pregnancy, and if this were to occur during labour it could place her and her baby at significant risk of harm” (paragraph 7).
T's obstetrician felt that there was a small risk that she would become so focused on delusional thoughts during labour that she would be unable to make decisions regarding her care. T’s midwife took the same view.
Lieven J criticised the timing of the Trust’s application at paragraph 10:
…it is of some note that the first time that the Official Solicitor was notified of the intention to make an application was Tuesday 26 July and she was sent the Application bundle on Friday 29 July. At that stage the plan was to induce labour on Tuesday 2 August, i.e. 2 working days after the bundle was sent. This was in circumstances where the Trust had been aware of T’s mental health condition since at least 19 May. As Ms Watson pointed out, the need for the application should have been apparent since at least 24 June when T’s midwife was unable to complete a full antenatal check.
When the Official Solicitor’s representative spoke to T on 29 July, he found her “very lucid” (paragraph 11). When the matter was heard in court, “the Midlands Partnership Trust, which was responsible for T’s mental health care, had declined to carry out a capacity assessment” (paragraph 12). T was supported to make an advance statement of her wishes and feelings on 31 July 2022.
Citing University Lincolnshire Hospitals NHS Trust v CD  EWCOP 24, Lieven J considered that there was ‘no doubt’ the court “has the power to make anticipatory declarations where P has fluctuating capacity, and there is a real risk that they will lose capacity in respect of an important decision, pursuant to s.15(1)(c) Mental Capacity Act 2005 (“MCA”)” (paragraph 14). Lieven J also noted that, as per NHS Trust 1 and NHS Trust 2 v FG  EWCOP 30, “there is very clear guidance from the court about the timing of applications concerning obstetric care where capacity is an issue” (paragraph 16). The guidance in FG “states that an application should be made “at the earliest opportunity” … and no later than four weeks before the expected delivery date.” Lieven J echoed Keehan J’s observations in FG “that a late application ‘…seriously undermines the role that the Official Solicitor can and should properly play in the proceedings’ and prevents the court from giving directions for further evidence, if necessary” (paragraph 17).
Lieven J stated that the application should have been made much earlier to allow consideration by the Official Solicitor and court. She also stated that T’s entering into an ‘advanced declaration about medical treatment’ was “a far more appropriate way to deal with a potential loss of capacity, rather than engaging the Court in making an invasive and draconian order. Such an approach protects the woman’s autonomy, in a way that an anticipatory declaration does not do” (paragraph 23). The court also sounded a note of caution about anticipatory declarations more generally ‘unless the evidence clearly supports it.’ 
24. […] In the present case the Court did not have evidence that T did not have capacity at the time of the hearing and was in reality doing no more than speculating as to whether she might lose it. The evidence was that there was nothing more than a “small risk” that she might lose capacity, and in my judgment that is insufficient to justify an anticipatory declaration in a case such as this. There is a serious risk in a case such as this that a woman’s autonomy will be overridden at such an important time, because of an assumption that she has lost capacity.
25. In this case there are other ways of managing the situation, apart from taking the draconian and properly exceptional step, of making an anticipatory declaration in respect of a woman who at the present time has capacity. Firstly, she could be invited to enter into an advance statement of her wishes and feelings in respect of her obstetric care during birth. It was clear that T was prepared to enter into such an advanced declaration. Secondly, if there was a true emergency, then the clinicians can use the doctrine of necessity to protect the mother. There needs to be some caution about turning what are in truth medical decisions into legal ones.
The observations about the impact of T’s entering into an ‘advanced declaration about medical treatment’ perhaps need a little unpacking. A person may create an Advance Decision to Refuse Treatment (ADRT) if the requirements are met, but this can only relate to a refusal of treatment. An advance statement, as T was supported to make in July 2022, can cover both ‘negatives’ and ‘positives.’ A clear and specific statement of T’s wishes and feelings at a time when she had capacity would clearly be of considerable relevance for any best interests decisions which would need to be taken if T were to lose capacity in the future.
However, it appears that the Trust’s concern was that it might need to force treatment on T in an emergency situation for her own safety and that of her child. While it is not explicit from the judgment, it would appear likely that the Trust anticipated that some restraint or deprivation of liberty might be required, and was seeking the declarations for this purpose. Despite the Government’s assertion that this is already the law, no court has ever held, and we strongly doubt, that an advance statement could serve as valid consent to confinement, occurring in the indefinite future, on unknown facts and on the assumption that T would lose capacity.
We would also consider that the criticisms given of the timing of the application perhaps give short shrift to the Trust’s need to respond to the factual picture as it emerged. While it appeared that T was having difficulties with her mental state, the Trust had considered her capacity in an assessment on 14 July and concluded that she had capacity. It would be difficult to see on what basis the Trust would have made an application in respect of a person who it had assessed as having capacity, and surely an application is not warranted in any case where there is some concern regarding the mental health of an expectant mother, or a reluctance to engage in all care interventions. Even by the time of the application, the Trust did not consider there was an overwhelming risk T would lose capacity, but only a ‘small risk,’ which the court did not consider warranted an anticipatory declaration. However, we would note in Glass v United Kingdom  ECHR 103, an Article 8 ECHR violation was found where a Trust had treated a patient without consent on an emergency basis without seeking a court order to do so. At paragraph 79, the ECtHR considered that the “onus was on the Trust to take the initiative and to defuse the situation in anticipation of a further emergency.” Trusts thus find themselves in the unenviable position of being criticised for bringing applications where there is only a small risk the emergency may occur, or being criticised for waiting too long by applying once it is relatively clear a court order is required.