Somerset NHS Foundation Trust v Amira
This judgment concerned an application made on 26 May 2023 by the applicant trust for anticipatory declarations that in the event ‘Amira’ lost capacity during the delivery of her child it would be in her best interests to implement an obstetric care plan with progressively more invasive interventions. Amira was 25 and was pregnant with her first child. The matter was heard on 8 June 2023, which was Amira’s due date.
Amira had a diagnosis of hebephrenic schizophrenia, which appears to have been responsive to medication, but prone to relapse if she ceased taking that medication. She had been transferred from prison to hospital in January 2023 with an index offence of ABH against her mother. She had previously been a psychiatric inpatient for approximately two years between 2020 and 2022.
While Amira was considered to have capacity when the application was made, “it was apprehended that as the delivery approached she would lose capacity” both to make treatment decisions and to conduct litigation (paragraph 3). Amira had made a good recovery since her January 2023 admission, and her mental state had improved considerably until two days prior to the 8 June 2023 hearing. From 6 June 2023, Amira had begun to experience paranoia, anxiety and distress, and had been unable to understand information put to her about her obstetric treatment. Treating clinicians considered that her deteriorating mental state was partly due to being told the local authority’s plan for her child (which would presumably have been to apply for her child to be taken into care). Amira’s capacity was assessed on 7 June 2023, and the Trust’s evidence was that she had lost capacity by that time. The application was reconstituted to seek declarations of current incapacity and orders on that basis, rather than anticipatory declarations.
The Trust’s obstetric care plan had been written with Amira’s involvement at a time she was considered to have capacity. It set out options for delivery in Amira’s order of preference, with the final option being an emergency caesarean section if required.
The Official Solicitor submitted that the Trust should have brought its application at the earliest opportunity after 8 March 2023, arguing that if it had been made in a timely manner, Amira would have had capacity to conduct these proceedings herself. The court noted that had this been the case, she would also have not lacked substantive capacity, and in the view of the court, “there would not have been any valid issue for the Court of Protection to decide” (paragraph 17).
After surveying existing case law on anticipatory declarations, Mostyn J set out his own perspective on their lawfulness; as Amira had been found to currently lack capacity by the time of the court’s consideration, this discussion was obiter dicta (i.e. it did not form a part of the actual, binding, decision).
Mostyn J considered that ss.4A(3) and (4) MCA only permit a deprivation of liberty where an order has been made under s.16(2)(a) and a “declaration under s.15 will not suffice” (paragraph 25). Mostyn J considered that in any event, the proposed anticipatory declarations “do not state how, or by whom, the future loss of capacity foreshadowed in each of these declarations is to be determined. This seems to me to be a fundamental flaw in the logos of the concept” (paragraph 26). Mostyn J considered that Part 1 MCA did not permit anticipatory declarations, but applied only to people who lacked capacity at the time the decision was to be taken. He considered that that ss.5 and 6 MCA “put on a statutory footing the common law doctrine of necessity as it applies to the care or treatment of persons who are believed to lack capacity” (paragraph 30). He concluded that in emergency situations “and only in such an emergency situation, Part 1 of the Act will apply to someone who may yet be shown not to lack capacity at the time that the act in question was done in relation to his or her care or treatment. But that is the only circumstance where someone who is in fact capacitous falls within the terms of Part 1 of the Act” (paragraph 31, emphasis in the original).
Mostyn J went on to consider the powers of the Court of Protection under s.15 MCA. In further obiter observations, Mostyn J made clear his view that the court was not able to make a best interests declaration in the event of future incapacity, and that the High Court had no power to authorise the deprivation of liberty of a capacitous person. Mostyn J made clear that he considered that anticipatory declarations were unworkable in practice, as there was no clear line as to when a person could be said to have lost capacity. He observed that, to the extent that the obstetric team had clear evidence that Amira had lost capacity during labour by receiving the contemporaneous opinion of her treating psychiatrist, “such an opinion would unquestionably satisfy the terms of s. 5(1) and 6 (and if the restraint amounted to a deprivation of liberty, s.4B also) thereby giving the obstetric team a complete defence to any later complaint by Amira that she had been the victim of battery or trespass to the person” (paragraph 40). The court stated that it was “at a loss as to why the ss 4B, 5 and 6 route to obtain immunity from a later complaint by P about an act done in connection with her care or treatment is not routinely used. It is specifically legislated for in the Act. In contrast, the device of a proleptic declaration under s. 15(1)(c) is in my judgment directly contrary not only to the wording of the Act, but also to its essential scheme” (paragraph 41).
Mostyn J returned to the application before him, which was grounded in the Trust’s evidence that by the time of the hearing, Amira had lost capacity to make decisions about her treatment (which was not challenged by the Official Solicitor).
Mostyn J concluded that Amira lacked capacity for the purposes of a s.15 MCA declaration, but before doing so, observed (again obiter) that the court may not have power to authorise a deprivation of liberty if it is making interim orders pursuant to s.48 MCA, but considered (at paragraph 52) that:
…In my opinion, in an emergency, provided that the court is satisfied that there is reason to believe that P lacks capacity, the court can lawfully authorise a temporary deprivation of liberty under the inherent jurisdiction to endure for a very short period until the question of capacity can be finally determined, and, if capacity is found to have been lost, an order made under s.16(2)(a), which in turn triggers s.4A(3) and (4)
Mostyn J readily found that the birthing care plan, which had been developed with Amira’s input, was in her best interests, as it would work to protect her own health and safety and that of her unborn child. Mostyn J authorised restraint in the implementation of that care plan.
It is worth emphasising that all of the more controversial statements in what we hope we can call a characteristically contrarian judgment were obiter dicta; Mostyn J did not appear to struggle to accept either that Amira had, by the time of the hearing, lost capacity to make decisions regarding her obstetric care, or that the graduated plan of interventions which she had contributed to was in her best interests.
While being cognisant that these comments were not part of the ratio of Mostyn J’s decision, we would not agree with his observation at paragraph 30 that ss.5 and 6 MCA address only emergencies. We would note the findings of the Supreme Court in N v ACCG  UKSC 22 at , which offers no such limitation to the powers of s.5 MCA:
Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court.
We would also note that the power to make anticipatory declarations under s.15 MCA has been repeatedly considered and found to exist; a comprehensive summary of the case law was recently conducted by Lieven J in The Shrewsbury and Telford Hospital NHS Trust v T and Midlands Partnership NHS Foundation Trust  EWCOP 20.
Finally, Mostyn J’s obiter observation that s.4B can be relied upon absent a court application having been made has a certain pragmatic appeal, but may come as a surprise to all of those making and determining so-called ‘Community DoL’ applications. In that context, s.4B doing all the ‘heavy lifting’ legally in terms of providing protection to those depriving individuals of their liberty in the community pending consideration of the application by the court.
Further, we would suggest that Mostyn J’s interpretation has two fundamental problems.
The first, is, as Mostyn J himself makes clear in footnote 1 to his judgment, his approach depends on rewording s.4B(2) from “there is a question about whether D is authorised to deprive P of his liberty under section 4A” to mean “there will be a question to be decided by the court whether D should be authorised.” His reason for adopting this interpretation is:
because s. 4A(3) and (4) provide that D may deprive P of his liberty if, by doing so, D is giving effect to a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare. If such an order has already been made there could never be a “question” whether D “is authorised” to deprive P of his liberty under section 4A. The authorisation in the order will be plain on its face and there could be no question about it. Therefore s. 4B(2) must be seen as stipulating a requirement that D intends, after the emergency is over, to obtain an order authorising the deprivation of liberty of P. The other, more literal interpretation, makes no sense to me.
However, this overlooks the fact that s.4A does not just apply to situations where a court order is made under s.16(2)(a). It also applies to situations where the deprivation of liberty is to be authorised under Schedule A1. An example of a situation where there is genuine doubt about whether a situation can be authorised by a DoLS authorisation is where there is a dispute about whether the person is eligible for DoLS, or whether the MHA 1983 has to be used. In such a situation, an application is required so that the court can decide which regime is in play (as per the JS case, the appeal against which is to be heard by Theis J on 20-21 July). Between the application being made and determined, the person is in the Schrodinger’s cat position of being both within the scope of DoLS (and hence s.4A) and outside its scope. The unglossed wording of s.4B(2) therefore makes entire sense within this context.
The second problem is that it drives a coach and horses through the approach to deprivation of liberty currently provided for in the MCA 2005. As also discussed in Norfolk and Suffolk NHS Foundation Trust v HJ  EWFC 92 (see further below in this Report), where the line is crossed from restraint – restriction upon – liberty to deprivation of liberty, formal authority is required. On Mostyn J’s approach, a person could be deprived of their liberty with no formal authority, on the basis that there is an understanding that an application will be made in due course. But what happens where – as is all too likely to be the case – the emergency passes, and no application is in fact made. Does this invalidate the lawfulness of the steps taken if the person taking them at the time (who may not be the person in charge of deciding to make the application) genuinely, but mistakenly considers that an application is to be made?
Put briefly, s.4B is not contingent on a reasonable belief that an application is to be made, but on the basis that a decision is being sought from the court, which we suggest makes clear that active steps are being taken – not just proposed – to obtain such a decision.
Ironically, the approach advocated for by Mostyn J is, in some ways, mirrored in the proposed amendments to s.4B that were contained in the Mental Capacity (Amendment) Act 2019. These would have provided for authority to deprive a person of their liberty in an emergency without further formal authority, on clearly defined grounds. Unfortunately, they are another victim of the decision not to implement the 2019 Act.