There are an increasing number of applications to the Court of Protection concerning pregnant women where there is a concern about the mother's capacity to make decisions regarding her pregnancy, the safe delivery of her child and her physical/mental wellbeing.
Recently, in NHS Trust v FG  EWCOP 30, Mr Justice Keehan has provided guidance, aimed at public authorities, on when cases concerning pregnant women with a disturbance in the functioning of their mind or brain should be brought to the Court of Protection (Mental Capacity Act 2005 – MCA) or the Family Division of the High Court (inherent jurisdiction). The Official Solicitor, who acts as a litigation friend of last resort for people who lack litigation capacity in these proceedings, provided submissions to the Judge on his thoughts.
FG was a 24 year old pregnant lady detained under the Mental Health Act 1983, suffering from schizoaffective disorder. One manifestation of this disorder was paranoid beliefs that the psychiatric team and social care staff were conspiring to murder her. These paranoid beliefs extended to the obstetric and midwifery professionals as her pregnancy progressed, she refused to take psychotropic medication and her mental health deteriorated. The applicants were the acute hospital trust responsible for FG's obstetric care and the mental health trust responsible for her psychiatric care. The Official Solicitor was appointed to act as FG's litigation friend as she was deemed to lack capacity to litigate. The application made by the health authorities was for permission to treat FG in accordance with two alternative care plans; one if she went into spontaneous labour and the other for induced labour after a specified date. The health authorities sought permission to use control, restraint and force to give effect to those care plans – which would lead to interferences with FG's rights under Articles 5 (freedom) and 8 (privacy and personal integrity). They also applied – exceptionally – for permission not to inform FG of the proceedings in advance of her delivery, in the immediate short-term or whilst her mental health was fragile due to the perceived negative impact on her on-going therapeutic relationships with her care team.
FG delivered a baby boy on 1 June 2014 by spontaneous vaginal delivery. Childcare proceedings were commenced for her baby. With agreement from her treating clinicians, FG was informed about the court proceedings on 6 June 2014. A reporting restriction order (RRO) is in place preventing identification of FG, the public authorities and treating professionals.
Reporting restriction orders prohibit the media, or anyone else, from identifying the patient in these types of cases. The judiciary has been at pains to note that the RRO does not have the purpose of protecting the anonymity of professionals or organisations, save to the extent that such identification is likely to:
- prejudice the ability of the professionals or organisation to care for the patient; or
- lead to the identification of the patient.
The threshold for these exemptions is high; it is no longer enough to simply say that identifying the treating professionals, or even the organisation, will lead to the identification of the patient. Cogent evidence as to why this would be the case is required. Therefore, public authorities and professionals involved in the care of patients must be mindful that it is more likely than not that:
- Any hearings will be heard in public and the media might well attend;
- The name of the organisation(s) and professional(s) are likely to be published;
- Any evidence given, either written or orally, may well be quoted.
Mr Justice Keehan was concerned that there is a lack of appreciation, generally, in these types of cases about:
- The planning that is required;
- The procedures that have to be followed;
- The appropriate timing of an application to Court; and
- The evidence required.
Key aspects of the guidance
The guidance, along with the judgment, are well worth a read in their entirety for any professionals involved in this field. However, we have extracted below the key aspects:
- Patients suffering from a mental disorder, illness or disturbance who are pregnant need careful and considered care planning and specific consideration as to whether applications to Court are necessary;
- Where a pregnant patient is detained under the Mental Health Act 1983 (MHA), it is more likely that any care, treatment and interventions related to their pregnancy will fall outside the ambit of the treatment provisions under s.63 MHA – if the patient lacks capacity to make related decisions, they will fall foursquare into the provisions of s.5 Mental Capacity Act 2005 (MCA).
- If restraint is necessary, careful consideration must be given to whether it is in reality a deprivation of liberty - that will fall outside of the remit of s.5 MCA and requires appropriate authority/sanction;
- It may be appropriate for any deprivation of liberty to be authorised by an urgent/standard authorisation;
- A failure by professionals or organisations to properly identify early that a pregnant patient's care may require judicial intervention is no excuse for an emergency application on or around the time of delivery – such justification is likely to receive short shrift by the Judge and potential public criticism in the media.
Cases which should be brought to Court
1. Proposed obstetric care is for serious medical treatment:
- Whether the proposed intervention is serious medical treatment will depend upon the circumstances of each case;
- A planned uncomplicated c-section is unlikely to amount to serious medical treatment;
- C-section may be serious medical treatment if the risks to the patient are higher than for the average patient or where the intervention may cause a deterioration in her mental health, leading to a requirement for force/restraint to carry out the intervention.
2. It is likely that a deprivation of liberty will be required to give effect to the proposed treatment:
- I.e. there is a real risk (a genuine risk) that the patient will require more than transient or negligible forcible restraint;
3. Where there is a serious dispute as to what obstetric care is in the patient's best interests:
- The dispute must be a serious one and have real substance;
4. Where the proposed treatment would amount to a deprivation of liberty that would otherwise be unlawful save for authorisation from the Court:
- E.g. where the patient is ineligible for a deprivation of liberty standard authorisation.
Crucially, it is not anticipated that every proposed care plan for obstetric care for a pregnant patient with a mental disorder, illness or disturbance will require an application to Court.
The interrelation between the Mental Health Act 1983 and deprivations of liberty under the Mental Capacity Act 2005/inherent jurisdiction for patients detained under the Mental Health Act 1983 but requiring a deprivation of their liberty associated with physical healthcare treatment is complex. Any deprivation of liberty must be appropriately authorised by a proper procedure prescribed by law; valid consent, Mental Health Act 1983, Mental Capacity Act 2005, inherent jurisdiction or (in very limited circumstances the common law of necessity). With children, there may also be mechanisms available under the Children Act 1989 through a person/body with appropriate parental responsibility or court order.
However, depending upon the precise circumstances, the application of one regime may render a patient ineligible for another regime and vice versa. Therefore, professionals should seek early and urgent advice and assistance from leads within their organisations with specialist knowledge in this field or formal legal advice.
Lessons to be learnt
Cases concerning interventions with pregnant women suffering from mental disorder, illness or impairment are complex; medically, ethically and legally. There is no doubt that applications to Court are time consuming, demanding and challenging for the professionals involved. They are resource-intensive, both personally and economically. However, there is now clear steer from the courts that these applications are not only often considered best practice but in many cases are obligatory.
With the initiative for increasing transparency being driven by the President of the Family Division, it is more likely than not that these applications will be heard in public, will be reported by the media and the public authorities involved will be named.
So, what steps should public authorities take? We've set out below, our top five tips for practical actions:
- Raise awareness – make sure that midwifery, obstetric, emergency care, mental health, social care and any other frontline staff who may be involved with pregnant women suffering from mental disorder/impairment are aware of this guidance and the duties and obligations arising from it. The key in these cases is early identification so that proper and timely advice and planning can be sought. As well as front line staff, there is a need for Managerial Understanding – corporately, both at Board and senior manager level, the organisation needs to recognise the seriousness of these cases and the potential impact that they could have – legally, financially and reputationally. Decision-makers within the organisation must be aware of the need to take early intervention and be empowered to authorise appropriate advice and support.
- Joint working – often these cases involve a number of agencies; acute healthcare providers, mental healthcare providers, safeguarding authorities and children's services. Proactively discussing how such cases will be approached and which organisation will be the lead locally can optimise any reactive management to a specific case. Ideally, agreeing joint protocols, clearly identifying the roles and responsibilities of different professionals and agencies can improve efficiency, effectiveness and economy whilst reducing duplication. Frequently, all of the public authorities could instruct the same legal advice and representation (where necessary), if they are working together at the outset. This presents an opportunity for a significant saving to the public purse.
- Be realistic – organisationally, public authorities should anticipate an increase in the number of these types of cases requiring judicial intervention. They have a significant impact on front line staff and the managerial and administrative teams supporting them. Preparing and giving evidence is time consuming and stressful. It is imperative that professionals are supported and that their workloads are managed to ensure that they can dedicate the time and energy necessary to do these tasks to the best of their availability. Ultimately, they are the public representatives of the organisations and it is a sensible investment of their time to give them sufficient opportunity to provide detailed and comprehensive evidence; whilst the press and the public might be quick to criticise public authorities, equally Judges recognise professionals who deliver considered and reasoned evidence – often providing praise in judgements. Also, with patients whose care is the subject of legal proceedings, there is frequently an expectation for steps and actions that go above and beyond the normal care pathways and procedures. Professionals and organisations are well advised to expect the unexpected and adopt a flexible approach; you will be expected to "think outside the box."
- Devil is in the detail – care plans, risk assessments and medical reports will all be analysed and scrutinised to the 'nth degree during Court proceedings; by the other parties to the case, independent experts and ultimately the Judge. Depending upon the circumstances, it may well be that those documents are also made publically available (appropriately anonymised). The best approach is to apply "who, what, where, when, how and why" to each and every aspect. Any reader of the document needs to understand exactly what you are doing, how you will achieve it and – most importantly – the reason that you are doing it and why it is the best approach in the circumstances (sometimes this will involve explaining and ruling out alternative options). Take each action, event or intervention in a detailed step-wise fashion. Remember – not everyone reading the document will be medically trained or experienced in social care fields – therefore, you need to explain jargon, fully describe processes, procedures and all risk issues. The factors that professionals automatically weigh in their decision-making will not necessarily be known to the people involved in the Court proceedings – so take the time to fully set out all of them in detail in your documents.
- Think fast, alert fast and act fast – if at all possible, it is best to avoid an emergency application. The Judge and the other parties will thank public authorities for raising any concerns early, to enable timely applications to Court, consideration of all of the issues and fully balanced and reasoned Judgements. It has to start with the professionals on the ground thinking fast and recognising where there is a potential for concern. They must then alert fast to their relevant management teams and to any other public authorities who may need to be involved. This must lead to prompt action – obtaining advice and guidance, notifying the Official Solicitor and any other properly interested persons and applications to court as necessary.
Pragmatic advice for individual cases
- Identify potential cases early;
- Notify all relevant agencies and commence joint working through regular minuted multi-agency professional meetings;
- Nominate a lead individual from each organisation and ensure that responsibility is delegated accordingly;
- Assess the patient's capacity to litigate and to take decisions regarding pregnancy, delivery and post-natal care;
- Assess risk of harm to the patient, unborn child and others;
- Plan the proposed interventions in advance and in significant detail – please see the guidance which lists all of the issues it is anticipated to be covered.
Mr Justice Keehan has recognised that a balance must be struck. It is not going to be necessary for there to be a Court application for every pregnant female with a mental disorder, illness or impairment; the presumption of capacity is the strong foundation to that starting premise. That being said, in this judgment and associated guidance, Mr Justice Keehan has shot a warning across the bows of every public authority not to place over-reliance on the principles of section 5 of the Mental Capacity Act 2005 (protection for those acting in the best interests of a person lacking capacity). There is a call for recognition that where there is such incapacity (or even just potential incapacity), frequently the necessary pre-natal, antenatal, peri-natal and post-natal care and interventions will amount to serious medical treatment/deprivations of liberty not only warranting but necessitating judicial intervention.
A link to the case and the guidance can be found here.