Although health and welfare proceedings in the Court of Protection can drag on for months, even years, before concluding, not all protected party litigation is like this. The Court of Protection can be called on to make decisions in urgent circumstances, where a protected party is at risk of serious harm. The recent decision in East Lancashire Hospitals NHS Trust v GH  EWCOP 18 provided a perfect example of this.
East Lancashire Hospitals NHS Trust v GH
The Protected Party was 26 years of age and 38 weeks pregnant, and suffered from anxiety, depression and very severe agoraphobia. Her capacity to make decisions about her health and welfare fluctuated. When she had seen medical specialists they had advised her not to have a home birth but to admit herself to hospital so that she could be cared for by clinicians. Although the Protected Party initially agreed, when her agoraphobia flared again she withdrew her consent.
The Protected Party suffered an obstructed labour at home, and after three days it was obvious that she would require further medical care, including a caesarean section. However, she refused to be admitted to hospital and this presented the midwives with a very serious problem. They knew the Protected Party and the unborn baby might die if she did not receive care. It appeared to them that the Protected Party was refusing to go to hospital because of her agoraphobia and she was non-receptive to medical advice as a result of this.
However, the NHS Trust could not force the Protected Party to accept treatment without the Court of Protection agreeing that it should take place. To even involve the Court of Protection however, the NHS Trust needed to be able to prove that the Protected Party lacked capacity. Capacity is presumed unless proven otherwise. The NHS Trust sent a specialist community mental health midwife to assess the Protected Party’s capacity, and the assessor believed that she no longer had the capacity to make decisions relating to her health and welfare.
The test for mental capacity is set out in Section 2 of the Mental Capacity Act 2005. The first test is known as the “diagnostic” test whereby an individual is unable to make a decision because of “an impairment of, or a disturbance in the functioning of, the mind or brain”. The second part is the “functional” test, which provides that someone may lack capacity if they are unable to:
(1) Understand information relevant to a decision;
(2) Retain that information;
(3) Use or weigh that information as part of the decision-making process; or
(4) Communicate their decision.
The midwife could see that the Protected Party was able to understand and remember the medical advice, and tell the practitioners what she wanted to do. But the Protected Party was unable to weigh up the information because her agoraphobia was so overwhelming.
The NHS Trust made an urgent application to the Court of Protection, seeking declarations:
- That the Protected Party lacked capacity; and
- That it was in the Protected Party’s best interests to be taken to hospital and treated in the manner the specialists thought necessary.
The Court heard the application at 10pm in the evening, and a litigation friend was drafted in at exceptionally short notice so as to ensure that the Protected Party had representation at the hearing. Having considered all the evidence, and the best interests criteria at Section 4 of the Mental Capacity Act 2005, the Court agreed that the Protected Party lacked capacity to make decisions about her treatment, and declared as such. The Judge also made specific declarations about how the Protected Party should be treated, who by, where the treatment should take place and what the treatment should include.
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