We recently helped our NHS Trust client to obtain an emergency Order from the Court of Protection to perform a c-section for a patient who lacked the mental capacity to consent or refuse. Everybody involved seemed to agree that a c-section was a good idea. This had misled the treating team into believing that a court Order wouldn’t be necessary. We were contacted when she was over 35 weeks pregnant and the c-section was planned for 38 weeks.
In NHS Trust 1 and NHS Trust 2 v FG (By her litigation friend, the Official Solicitor (2014) ECWOP 30, the Court of Protection unusually issued guidance, which includes that in some circumstances a planned, uncomplicated c-section does not require an application to the Court, as it does not constitute ‘serious medical treatment’. Although some very experienced advocates doubt whether this can still be relied upon, based on more recent obiter comments in Court (but not written into the conclusion of a judgment). Practice Note 9E is useful, but is said to be under review.
In the guidance the following categories would tip a case into ‘serious medical treatment’ and thereby require a court Order:
- where the merits of performing the procedure are finely balanced;
- where more than transient restraint may be required;
- where the patient's obstetric history presents a high risk of complications; or
- where the patient's psychiatric condition could be adversely affected by the intervention.
In our case, there was a risk that the patient might require restraint to perform the procedure due to her record of impulsive absconding. As a result, an application to court was mandatory. The patient already had a solicitor and a litigation friend who knew her well from on-going legal proceedings.
We therefore worked quickly with the Trust to obtain detailed witness statements from the midwife, anaesthetist and obstetrician, including information on each of the birth options and alternatives in a detailed birth plan.
In approving the order, Mr Justice Moor in the Royal Courts of Justice praised the parties for working together constructively to agree a treatment plan which was clearly in the patient's best interests - this was easy to do with the patient’s representatives. With the order in place, the clinicians were supported and confident of what they could lawfully do following each alternative plan.
This case demonstrates:
- the importance of midwives and clinicians recognising the potential need for a court Order at the earliest opportunity. If you have a pregnant patient who might lack capacity to consent to a birth plan, you should seek specialist legal advice, either just after the patient ‘books in’ the pregnancy or as soon as doubts about capacity arise.
- Although everybody seems to agree to the plan, this is not always the deciding factor in whether you need an Order to protect the clinicians, and ensure the actions are lawful.
- Making an emergency application to court, requiring a court hearing within 7 days, increases the pressure on the Trust clinicians and risks the Trust being liable for the costs of the other parties. For clinicians, marshalling their thoughts, plans and statistics on risks and benefits, to produce a detailed witness statement for the court, takes many hours, on top of a usually busy schedule.
- The assessments of capacity (by the consultant and also often a psychiatrist and the IMCA) take time to arrange and then produce their reports. The patient may also want an independent expert to visit them.
- The Best Interests meeting, including all of the relevant specialties and those that know the patient (possibly from another organisation) also takes time to convene. We recommend obtaining legal advice on the detailed agenda and a note taker with legal experience, to ensure that the meeting process stands up to judicial scrutiny. The IMCA often needs this document before they will carry out their assessments.
- All of the written evidence is required to be signed and dated, to send to court with the first application requesting a hearing date.
If you would like more information on the advice and support we can provide in relation to applications to the Court of Protection, please get in touch.