The Court of Protection exists to safeguard and promote the welfare of individuals who lack capacity to make specific decisions for themselves. The Court has jurisdiction to determine questions of capacity and, where capacity is lacking, to make decisions in a person’s best interests. In Health and Welfare cases, the Court is often asked to authorise or refuse serious medical treatment and in doing so will be required to balance clinical evidence, the person’s wishes and feelings and fundamental rights such as bodily autonomy and respect for private life under Article 8 of the European Convention on Human Rights.
When making Health and Welfare decisions, the Court follows a structured approach. First, it determines whether the person has capacity to make the specific decision in question at the material time. Capacity is decision‑specific and time‑specific. If the person lacks capacity, the Court then undertakes a best interests assessment. This is not a purely medical test. It requires the judge to consider the person’s past and present wishes and feelings, beliefs and values, the views of others involved in their care and the available options and to identify the least restrictive way of meeting the person’s needs.
Court of Protection medical decisions: the EN case
These principles were applied in the urgent and highly sensitive case of University Hospitals Birmingham NHS Foundation Trust v EN[1]. EN was a 37‑year‑old woman at full term in her pregnancy. She had a long‑standing diagnosis of schizophrenia and was detained under the Mental Health Act following a relapse in her mental health. During the latter stages of pregnancy, her engagement with antenatal care deteriorated significantly. She refused blood tests, monitoring and aspects of obstetric assessment. There were concerns that she had untreated gestational diabetes, placing the unborn baby at increased risk, including a risk of stillbirth.
EN expressed a strong wish for a natural delivery and was adamantly opposed to various medical interventions. Expert evidence from both a psychiatrist and obstetrician concluded that, due to her acute psychotic relapse, EN lacked capacity to make decisions about her antenatal care and mode of delivery. She was unable to understand, retain or weigh the relevant information about the risks and benefits of different options.
The NHS Trust applied urgently to the Court of Protection seeking declarations that EN lacked capacity and orders authorising a planned caesarean section under general anaesthetic, including the use of restraint and sedation if necessary.
The judge accepted that EN lacked capacity in relation to decisions about the mode of delivery. The Court then turned to best interests, recognising that authorising a caesarean section against EN’s expressed wishes was a profound interference with her bodily integrity.
The judge carefully weighed EN’s current opposition to caesarean delivery against the clinical evidence. He accepted that a natural delivery carried significant risks given EN’s non‑compliance, untreated gestational diabetes and mental state and that those risks outweighed the risks associated with a planned caesarean under general anaesthetic. The Court authorised the procedure, including proportionate restraint, concluding that this course best protected EN’s physical and psychiatric health and reduced the risks to the baby.
Notably, the judgment contains strong judicial criticism of the Trust for bringing the application at such a late stage and in a procedurally unsatisfactory manner. The Court emphasised that applications of this gravity must be identified and prepared earlier, in line with established guidance.
This case offers several important lessons. First, capacity assessments must be rigorous, decision‑specific and timed appropriately, particularly where capacity may fluctuate. Secondly, best interests decisions in obstetric cases require a nuanced balancing exercise that gives genuine weight to the woman’s wishes, even where those wishes cannot ultimately prevail. Thirdly, NHS bodies and clinicians must identify potential Court of Protection cases early and bring applications in good time; late, rushed applications risk injustice and serious judicial criticism. Finally, the judgment is a stark reminder of the Court of Protection’s difficult role in authorising highly intrusive medical interventions and the care required whenever personal autonomy is overridden in the name of best interests.
[1] [2025] EWCOP 59
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Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.